Aitken and Repatriation Commission
[2007] AATA 4
•5 January 2007
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 4
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/513
VETERANS’ APPEALS DIVISION ) Re PETER AITKEN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr KS Levy, Senior Member Date5 January 2007
PlaceBrisbane
Decision The Tribunal decides that:
(a) The decision under review is set aside;
(b) The condition of alcohol dependence/alcohol abuse is war caused;
(c) The conditions of generalised anxiety disorder, hypertension, aortic stenosis and atrial fibrillation are related to the applicant’s condition of alcohol dependence/alcohol abuse and are as a consequence, war caused;
(d) Calculation of the rate of pension as a result of the above determinations is referred to the Repatriation Commission for assessment.
.........[Sgd]...........
KS Levy
Senior Member
CATCHWORDS
VETERANS AFFAIRS – service in Royal Australian Army – service in Malaya – fear of ambush and guard duty as severe stressors – war caused injury and disease – claimed alcohol dependence / alcohol abuse, aortic stenosis, hypertension and tinea – statement of principles - hypothesis not disproved beyond reasonable doubt – decision set aside.
Administrative Appeals Tribunal Act 1975: s29(1)
Veterans’ Entitlements Act 1986Repatriation Commission v Gorton (2001) 110 FCR 321; (2001) 65 ALD 609; (2001) 33 AAR 370; [2001] FCA 1194
Fogarty v Repatriation Commission [2003] FCAFC 136; (2003) 37 AAR 363Benjamin and Repatriation Commission (2001) 70 ALD 622; (2001) 34 AAR 270; [2001] FCA 1879
Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144
Stoddart v Repatriation Commission (2003) 197 ALR 283; (2003) 74 ALD 366; [2003] FCA 334
Repatriation Commission v Stoddart [2003] FCAFC 300; (2003) 134 FCR 392; (2003) 77 ALD 67; (2003) 38 AAR 176
Repatriation Commission v Hill [2002] FCAFC 192; (2002) 69 ALD 581
White and Repatriation Commission [2004] FCA 633; (2004) 39 AAR 67
Woodward v Repatriation Commission [2003] FCAFC 160; (2003) 131 FCR 473; (2003) 200 ALR 332; (2003) 75 ALD 420; (2003) 37 AAR 424
Delahunty v Repatriation Commission [2004] FCA 309; (2004) 38 AAR 511
Byrnes v Repatriation Commission (1993) 177 CLR 564; (1993) 116 ALR 210; (1993) 67 ALJR 805; (1993) 30 ALD 1; (1993) 18 AAR 1; [1993] HCA 51
Chambers v Repatriation Commission (1995) 55 FCR 9; (1995) 129 ALR 219; (1995) 36 ALD 207; (1995) 21 AAR 128
Forbes and Repatriation Commission (2000) 101 FCR 50; (2000) 171 ALR 131; (2000) 58 ALD 394; (2000) 31 AAR 381; [2000] FCA 328
Flentjar and Repatriation Commission (1997) 48 ALD 1; (1997) 26 AAR 93
Banovich v Repatriation Commission (1986) 69 ALR 395; (1986) 11 ALN N142
Cavell and Repatriation Commission (1988) 9 AAR 534
Starcevich v Repatriation Commission (1987) 18 FCR 221; (1987) 76 ALR 449; (1987) 14 ALD 160; (1987) 7 AAR 296
Repatriation Commission v Strickland (1990) 22 ALD 10; (1990) 12 AAR 343
Kumar v Immigration Review Tribunal (1992) 36 FCR 544
Cavell v Repatriation Commission (1988) 9 AAR 534REASONS FOR DECISION
5 January 2007 Dr KS Levy, Senior Member 1. Peter Aitken, the applicant in this matter, sought a determination from the Repatriation Commission that his conditions of alcohol dependence or abuse, aortic stenosis, hypertension and tinea were related to his military service under the Veterans’ Entitlements Act 1986 (the Act). That claim was rejected by the Repatriation Commission on 3 April 2003.
2. The applicant sought review of that decision from the Veterans’ Review Board. On 1 March 2005, the Veterans’ Review Board accepted tinea as a war-caused condition, added the condition of atrial fibrillation as a further diagnosis for the applicant, and then affirmed (rejected) the previous decision as varied, which related to alcohol dependence or abuse, aortic stenosis, atrial fibrillation and hyptertension. Those decisions are now the subject of an application to this Tribunal under section 29(1) of the Administrative Appeals Tribunal 1975.
3. The applicant was represented by Mr M J Taylor of Counsel, instructed by Wallace Davies solicitors and the respondent was represented by its advocate, Mr John Stoner.
Background
4. Mr Aitken was born on 21 October 1935. At the date of his application to the Repatriation Commission, he was 67 years of age. At the date of the hearing of this matter, the applicant was 71 years of age. He left school at age 14 and commenced an apprenticeship as a pastry cook. He then joined the Royal Australian Army at 19 years of age and undertook National Service. Following National Service training, he joined the Australian Regular Army and gave evidence that he had wanted to be in the Infantry. He was posted to Malaya at the age of 20 and had his 21st birthday whilst serving there.
5. On arriving in Malaya, he was first posted to the battalion headquarters for two weeks. He was then posted to A Company at Sungei Siput and was located in the centre of the islands, which was mainly in a jungle type scenario.
6. The applicant’s military service was with the Australian Army from 24 November 1954 to 23 November 1960. He rendered operational service during that period as follows:
(a) 21 July 1956 to 31 August 1957 – Malaya
(b) 1 September 1957 to 31 October 1957 – Far East Strategic Reserve
7. The applicant has the following conditions accepted as being related to service:
(1) Bilateral sensorineural hearing loss;
(2) Bilateral tinnitus
(3) Acquired cataracts in both eyes
(4) Chronic solar skin damage
(5) Old cystoid maculopathy
Events
8. The applicant claims that the following events have resulted in psychological dysfunction, and amount to “severe stressors” or “severe psychosocial stressors”:
(a)Fear of being ambushed while being transported from battalion headquarters to A Company location at Sungei Siput - “the transport event”;
(b)Hearing stories about the “…pipeline ambush” whilst at Sungei Siput; and
(c)Undertaking guard duty with live ammunition - “the guard event”.
Evidence
9. The following documentary exhibits were admitted:
Exhibit 1 – the T documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975
Exhibit 2 – Dr P Mulholland report dated 13 March 2006
Exhibit 3 – Writeway Research report dated 5 March 2006
Exhibit 4 – Statutory Declaration of the applicant dated 14 November 2005
Exhibit 5 – Statutory Declaration of the applicant dated 19 April 2006
Exhibit 6 – Statement of Dr Barry dated 10 February 2006
10. In relation to his claim for alcohol abuse, the applicant provided evidence to the Tribunal that he first started drinking with friends at about 18 or 19 years of age. At that time he would have had one or two drinks per week. He then joined the Army at age 19 and was not drinking much at first and in fact, seldom drank during the week. As his National Service training progressed, he drank a little more while he was at Wacol, but was not drinking to excess.
11. He was posted to Malaya at the age of 20. He had his 21st birthday whilst serving with the Army in Malaya. His first posting was to the battalion headquarters where he remained for approximately two weeks. He was then posted to A Company which was in the field and, according to the applicant, in the centre of the islands. It was jungle country. A Company had approximately 100 personnel and they were supported by British troops.
12. The applicant described hearing about the “pipeline ambush” which had occurred about one month before the applicant arrived in Malaya. While he was a cook, he stated that his drinking habits initially were the same as they were when he left Australia, that is, they were not excessive. His work environment involved him working with four or five other cooks at A Company and all remaining personnel were infantry soldiers. He had heard of the fire fight that took place at the “pipeline ambush” and stated that he started to get worried as he was not trained as an infantryman. Also, this skirmish occurred not far from the company area. The stories of the “pipeline ambush” were heard by the applicant while drinking at night with other cooks and infantry soldiers and it was a regular topic of conversation.
13. The applicant also referred to another incident which affected him psychologically – undertaking guard duty. He stated that he “felt terrible”. He undertook guard duty three or four times, although there was no incident which involved him having to respond to any attack by communist forces. He reiterated that this made him very worried and that it did affect his drinking.
14. The applicant also referred to having to make trips to Kroh. On these occasions he always had an escort and no incidents arose in that regard. He had to travel through thick jungle to get there and it was merely a track which was narrow and winding. He told the Tribunal he took this trip about once per month.
15. The applicant’s evidence was that these incidents involved an increase in his drinking, and while the increase occurred gradually, his drinking became very heavy within a couple of months. He needed to drink to fall asleep. When he left Malaya to return to Australia, he stated that he was drinking about three hours per day in Malaya and that he maintained the same pattern when he returned to Australia. That same level of alcohol consumption continued after his discharge from the Army.
16. In cross-examination by Mr Stoner, the applicant told the Tribunal that he originally wanted to be in Infantry but was allocated to the Catering Corps. He agreed that maybe that is why he also increased his alcohol intake and may have done so even in Australia because of that disappointment.
17. He agreed with Mr Stoner that the ambush stories that he heard were repeated regularly, but this was mostly after hours, when he was drinking with others.
18. He also told the Tribunal that his last job was when he owned fish and chip shops. He had three shops which he operated as a sole trader, one of which he ran himself, and the other two were run by a “head girl”. He told the Tribunal that he last lodged a tax return in 2002 and subsequent difficulties arose as he was not up to date with payments to his accountant. Consequently, his tax returns were not lodged. He was subsequently bankrupted. He told the Tribunal that he finally walked away from all three of the shops and finished with an overall financial deficit.
Medical evidence
Dr Jennifer Barry
19. Dr Barry diagnosed the applicant as having alcohol dependence, although this condition was now in remission. She stated that this did not preclude Mr Atkin from attracting this diagnosis given his past history and that he satisfies the DSM-IV criteria. Dr Barry noted that Mr Aitken’s use of alcohol increased significantly during his service related activities. She formed the view that he used alcohol to cope with service life. She also thought that whilst in Malaya, he was exposed to a range of “stressors”. She said that the applicant was subjected to “traumatic stories of death and injury to personnel known to him”. She thought the stressors described were sufficient to result in the applicant relying on alcohol as a coping mechanism.
20. Dr Barry also noted that she provided three reports in relation to Mr Aitken but only on the last occasion did he reveal that his mother had significant problems with alcohol abuse/alcohol dependence. She also noted that his father drank to excess and that the applicant’s younger son is now experiencing significant difficulties with alcohol use.
21. Dr Mulholland provided a report dated 13 March 2006 on behalf of the Department of Veterans’ Affairs. Dr Mulholland also diagnosed Mr Aitken with alcohol abuse/alcohol dependence and also stated that he was in a “sustained full remission”, although he noted that the applicant often had an urge to drink.
22. Dr Mulholland indicated that the applicant’s cessation of drinking was due to willpower and not to any intervention by a person or organisation. He also had no pharmacological assistance to assist with his abstention from alcohol.
23. Dr Mulholland however, did not think that the applicant’s condition was sufficiently related to his military service. Dr Mulholland stated that the applicant reported no panic attacks and he was not obsessive - although he did have bouts of irritability. The applicant described to Dr Mulholland that he thinks about the situation in Malaya occasionally but Dr Mulholland stated that “….. it does not sound as though he pathologically pre-occupied with same” (see Exhibit 2, paragraph 7.18).
24. Mr Aitken told Dr Mulholland that he has had more anxiety since he stopped drinking. Dr Mulholland thought that it was likely that the applicant had been anxious for many years and this was masked by previous heavy drinking. The applicant was married in 1965 and separated from his wife in the early 1980s. He has three adult children, two sons and a daughter. He has satisfactory relationships with both of his sons but is not on speaking terms with his daughter owing to some long-standing issues in relation to her 21st birthday and her wedding arrangements. He noted the applicant’s bankruptcy was related to his drinking problems.
25. In relation to his service with the Army, he told Dr Mulholland he had been on guard duty two or three times and that made him feel “pretty nervous”. He also described being anxious when on leave. He stated that he was never actually attacked when he was on guard duty.
26. Dr Mulholland stated that the applicant drank regularly during the day, and nearly every day whilst he was in Malaya. He always drank at night time. He formed the impression that the applicant was “….. semi-drunk most of the time that he was in Malaya and frequently drunk at night time”. Dr Mulholland concluded that he did not believe that the description of his service life comprised a “severe psychosocial stressor” or a “severe stressor”.
27. Dr Mulholland has formed the opinion that the applicant also had generalised anxiety disorder at the time of his consultation and that it was more obvious because he was then not drinking. He said it was unclear when this disorder commenced. However, he stated that it was likely that this condition was secondary to the alcohol abuse/dependence and may be affected also by constitutional factors. Dr Mulholland said he did not have post traumatic stress disorder and was not clinically depressed.
Consideration
28. Whether the applicant has alcohol dependence, which is attributable to his military service, relates to three events which have been claimed to be “severe stressors” or “severe psychosocial stressors”. These are:
1.Fear of being ambushed whilst being transported from battalion headquarters to A Company location at Sungei Siput (“the transport event”);
2.Stories of the “pipeline ambush” whilst at Sungei Siput (“the stories event”);
3.Undertaking guard duty with live ammunition (“the guard event”).
29. The Tribunal must be satisfied that the events claimed in fact occurred. The report of the Writeway Research service dated 5 March 2006 provides sufficient evidence to suggest that there is adequate credibility in the events or environment described by the applicant.
30. Section 9 of the Act outlines the circumstances in which a veterans’ disease or injury may be accepted as being war caused. The relevant provisions are:
9War‑caused injuries or diseases
(1) Subject to this section and section 9A, for the purposes of this Act, an injury
suffered by a veteran shall be taken to be a war‑caused injury, or a disease contracted by a veteran shall be taken to be a war‑caused disease, if:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…
(e) the injury suffered, or disease contracted, by the veteran:
(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war 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 eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise.
31. For claims made after 1994, any relevant Statement of Principles (SoP), determined under section 196B of the Act must be applied. The relationships to service contemplated by the SoP and which are to be determined under section 9, are set out in section 196B(14).
32. As submitted by Mr Stoner, the Tribunal must determine at least one of the claimed conditions as related to service before it has jurisdiction to consider assessment of pension. However, it is conceded by Mr Stoner, if the Tribunal finds alcohol dependence is related to service, then he agreed that hypertension is a sequela of that condition, and that the other conditions claimed could each meet one factor in the relevant SoPs.
33. The following SoPs are relevant:
Alcohol Dependence/Alcohol Abuse – SoP Number 76 of 1998
Generalised Anxiety Disorder – SoP Number 1 of 2000
Hypertension – SoP Number 35 of 2003 and Number 3 of 2004
Aortic Stenosis – SoP Number 54 of 2002
Atrial Fibrillation – SoP Number 19 of 2003
34. This applicant has an accrued right to have his claims in respect of atrial fibrillation and hypertension reconsidered in terms of earlier SoPs in the event that the Tribunal determines that his present claims are not satisfied (Repatriation Commission v Gorton 2001 (65 ALD 609 at 65)). In that respect, if the accrued rights need to be applied, the following SoPs will be relevant –
Atrial Fibrillation – SoP Number 9 of 1996
Hypertension – SoP Number 31 of 2001
Standard of Proof
35. The Standard of Proof required for operational service is set out in sections 120(1) and 120(3) of the Act. Those provisions require the Tribunal will determine that the veterans’ injury was war caused unless it is satisfied to the standard of a reasonable hypothesis, that there is no sufficient justification for making that finding. In common legal parlance, this means that the Tribunal must be satisfied to the standard of proof of beyond reasonable doubt for it to be able to reject the veterans’ injury as being war caused.
36. In respect of all other matters, the Standard of Proof required is that of reasonable satisfaction (see section 120 (4) of the Act; Fogarty v Repatriation Commission[2003] FCAFC 136; Benjamin v Repatriation Commission (2001) 70 ALD 622).
Diagnosis
37. As stated above, any diagnosis must be determined to the standard of proof of “reasonable satisfaction” (see section 120(4)). Both psychiatrists who provided evidence in this matter, Dr Barry, the treating psychiatrist, and Dr Mulholland, have determined that the applicant has alcohol dependence (in remission). Dr Mulholland further opined that the applicant also had generalised anxiety disorder, which was now more evident since the applicant had stopped drinking. He also thought that the anxiety disorder was secondary to the alcohol dependence.
38. As there is no dispute as to the medical diagnosis, the Tribunal accepts, based on all the evidence provided by the applicant and by the medical practitioners, that a diagnosis of alcohol abuse/alcohol dependence (in remission) is warranted. A diagnosis of generalised anxiety disorder secondary to the alcohol abuse is also accepted by the Tribunal as being warranted.
39. In making this diagnosis, the Tribunal notes that Dr Mulholland thought that the alcohol abuse condition may have been due partially to “constitutional factors”. He has also noted that Dr Barry, in her last report, noted that Mr Aitken had revealed for the first time that his mother had significant problems with alcohol abuse and dependence. She also stated that his father had drunk to excess, albeit not with the same consequences which occurred for his mother. He also revealed that his younger son is now experiencing significant problems with alcohol use.
Clinical Onset
40. Dr Barry attributed the applicant’s alcohol abuse/alcohol dependence to his service related experiences. She did so on the basis that he did not warrant such a diagnosis prior to his military service but thought it was reasonable to conclude that “his war related experiences precipitated the development of the alcohol dependence”.
41. Dr Mulholland seems to accept that the applicant’s alcohol abuse/dependence existed from 1955 until 2002. As he joined the Army in 1954, it seems reasonable to expect that the condition of alcohol abuse/dependence commenced during his period of military service. In relation to the condition of generalised anxiety disorder, Dr Mulholland says that it is not possible to advise exactly when the anxiety disorder commenced but suggested that there is evidence that dates back to his marriage in 1965 at least. He thought it was secondary to alcohol abuse/alcohol dependence and therefore, it would not reasonable to expect that condition pre-existed the applicant’s alcohol abuse condition. The Tribunal determines that alcohol abuse / alcohol dependence had its onset in 1956 during the applicant’s period of operational service.
The Evidence of Experiencing a “Severe Stressor”
42. In respect of claims in relation to operational service, the Tribunal must follow the steps set out by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97. There, the court stated that in applying the legislative provisions the Tribunal must undertake the following:
1. The tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). ...
3. If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the `template' to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be `reasonable' and the claim will fail.
4. The tribunal must then proceed to consider under 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, ... If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
43. The relevant factor within SoP Number 76 of the 1998 is Factor 5(b), which provides that the applicant must have experienced a severe stressor within two years prior to the clinical onset of alcohol dependence or alcohol abuse. “Experiencing a severe stressor” is defined in Clause 8 of that SoP as follows:
‘experiencing a severe stressor’ means, the person experienced,
witnessed or was confronted with, an event or events that involved actual
or threat of death or serious injury, or a threat to the person’s or other
people’s physical integrity, which event or events might evoke intense
fear, helplessness or horror.In the setting of service in the Defence Forces, or other service where the
Veterans’ Entitlements Act applies, events that qualify as severe stressors
include:(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty
clearance, atrocities or abusive violence;
44. The applicant’s Counsel argued that based on Stoddart v Repatriation Commission [2003] FCA 334 and Repatriation Commission v Stoddart [2003] FCAFC 300, that if the Tribunal accepts that the applicant believed he had experienced a threat, even though the applicant’s description was not elegant, the tenor of the arguments and the evidence of Doctors Mulholland and Barry should be accepted - the applicant felt in fear of his life from the time he went to Malaya. At the age of 20 he was subjected to regurgitation of old stories and he became more fearful the more he heard these. Counsel for the applicant argued that the test in Stoddart is a subjective test and requires consideration of what the applicant felt, not an objective test. He urged the Tribunal to consider that the applicant was in a war zone at the time and was in fear of his life. He urged the Tribunal to determine there was a reasonable hypothesis, as to conclude otherwise, the Tribunal, it was suggested, would need to be satisfied beyond reasonable doubt of contrary evidence.
45. Mr Stoner, on the other hand, submitted that an “event” must indicate something must be happening (see Mansfield J in Stoddart). He conceded that on the authority of Stoddart, there was room for subjectivity by the veteran in interpreting the seriousness of the circumstances in which he was placed, but the court also required that it satisfy the test of objective reasonableness. That is, it would also need to be tested against the ordinary response by a person aged 20 or 21 who had been in the Army for two years and was in an operational area employed as a cook, and whether the circumstances described could be regarded objectively as being severe stressors.
46. In this case, the applicant has heard stories but they were not witnessed by him. It is noted that in the definition of the examples, there is a requirement for an applicant to have witnessed or be confronted with, or involved in, an actual threat of death or serious injury. In relation to guard duty, the applicant performed this duty two or three times (evidence given to Dr Mulholland and to the Tribunal). The applicant stated that he performed the duty three or four times. However, nothing happened.
47. In applying the Deledio steps, the Tribunal is satisfied, upon consideration of all of the material, that the material points to hypotheses connecting the applicant’s alcohol dependence/alcohol abuse and generalised anxiety disorder, and potentially, hypertension, aortic stenosis and atrial fibrillation, with circumstances of the applicant’s service in Malaya. The first step in Deledio is therefore satisfied. There are SoPs in force for each of the above conditions as outlined earlier. The second step of Deledio is therefore satisfied also.
48. In relation to the third step, for an hypothesis to be reasonable where an SoP applies, the material upon which the hypothesis is based must contain one or more of the factors which the authority has determined to be the minimum which must exist as prescribed by the SoP (Repatriation Commission v Hill [2002] FCAFC 192).
49. In considering whether the applicant could be regarded as having experienced a severe stressor, whether for diagnosis or in terms of satisfying the substantive framework of the SoP, requires consideration of both subjective and objective elements (see White and Repatriation Commission [2004] FCA 633; Woodward and Repatriation Commission (2003) 200 ALR 332; Repatriation Commission and Stoddart [2003] FCAFC 300). In the latter case, the Full Court (at 357) adopted with approval, the following part of the judgment in Woodward’s case:
The definition extended to a person experiencing or being confronted with an event involving threat of death or serious injury…., if the event said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of the applicant experiencing, it was capable of conveying, and did convey, the risk of death or serious injury. In other words ‘experiencing’ should be construed as having at least this partially subjective connotation.
50. The Federal Court has amplified the part to be played in a persons’ subjective experience in determining whether an event or incident could be regarded as being a severe stressor. The Tribunal should with respect to each objective event, have regard to the point of view of a reasonable person in the situation of the person experiencing the events described. The variations in personality of different applicants is a factor that may account for differences in reaction to specific events and it is acknowledged that some people have a greater capacity to withstand stress than others (Delahunty v Repatriation Commission [2004] FCA 309). Therefore, the events submitted by the applicant may not be seriously threatening to some people, but for others, they may both objectively and subjectively, create a perception of threat of serious injury.
Are the hypotheses disproved beyond reasonable doubt?
51. On the face of the events described, the Tribunal was not initially convinced that the events could be regarded as objectively falling within the definition of a severe stressor. Such was the opinion also of Dr Mulholland. Of course, Dr Barry, the treating psychiatrist held the opposite view. The Tribunal is mindful of the legal test required that the hypotheses must be disproved beyond reasonable doubt. However, the Tribunal is conscious of the indication in the last report of Dr Barry where Mr Aitken had revealed that his mother and his father had both had significant problems with alcohol abuse. The applicant describes similar problems in relation to himself and also told Dr Barry that his younger son is now experiencing similar difficulties in his management of alcohol. Dr Mulholland did also acknowledge that constitutional factors may be at play here. The applicant is now 70 years of age and has suffered alcoholism for over 40 and possibly 50 years. In considering the legal test, the Tribunal must be satisfied that the events could not have had the consequences described by the applicant as a result of serving in Malaya in 1955. He was trained as a cook and not as an infantryman. He served in the jungle territory in Malaya, and while one could say that he drank voluntarily, he undoubtedly did so in the context of that being the only recreation available - he was a very junior soldier and that was part of his socialisation. He also seems to have some familial pre-disposition to alcohol abuse. In those circumstances, the hypotheses raised are reasonable.
52. It seems to me that these factors have operated cumulatively such that, when considered subjectively, these events increased the applicant’s stress levels, he was innately unable to deal with that stress at that age and stage of his life, and that he drank to cope with the stressful effects. These are undoubtedly complex interaction effects of stress and alcohol consumption in that environment in a vulnerable individual such as Mr Aitken. The Tribunal is not satisfied that the hypotheses can be disproved beyond reasonable doubt.
53. In relation to the fourth step, the Tribunal must make findings of fact. The Tribunal finds the applicant to be a truthful witness although it is undoubtedly the case that his recollection of events is not absolutely accurate given the passage of time and also the effects of his alcohol abuse. Section 120(1) requires that the claim must be upheld, unless it is shown beyond reasonable doubt that there is no sufficient ground for determining the applicant’s alcohol abuse/alcohol dependence is war caused within one of the subsections specifying causation in section 9 of the Act.
54. Under section 120(1) of the Act, the hypothesis will be established unless there are facts necessary to support the hypothesis which can be disproved or other facts which are shown to be inconsistent with those raised in the hypothesis are established beyond reasonable doubt. (Byrnes v Repatriation Commission (1993) 177 CLR 564). On the evidence provided, the Tribunal cannot be satisfied beyond reasonable doubt that there is no sufficient ground for determining the applicant’s alcohol dependence and alcohol abuse is not war caused.
55. Therefore, the applicant’s claim in respect of alcohol abuse/alcohol dependence must succeed, based on the concessions made by Mr Stoner in his submissions and Statement of Facts and Contentions. The Tribunal also finds that the other conditions claimed are satisfied - generalised anxiety disorder (factor 5(a)(iii)), a condition secondary to alcohol dependence or alcohol abuse; together with hypertension (factor 5 (b)); aortic stenosis (factor 5 (e); and atrial fibrillation (factor 5 (c)). These are all held to be war caused and consequential to the applicant’s alcohol abuse/alcohol dependence.
Assessment of Pension
56. The decision under review included a referral of the assessment of pension to the Repatriation Commission. No issue was taken by the applicant in respect of this issue, however, the respondent submitted a succinct analysis of the issues required to assess pension in this case. The respondent noted that if the Tribunal found that the conditions which the applicant suffers are related to service, then the question is whether the applicant is entitled to an increase in pension. The respondent made a concession that in the circumstance of the Tribunal finding that alcohol dependence is related to service (and the other conditions are secondary to alcohol abuse/alcohol dependence), then the respondent conceded that it would not oppose pension at the rate of 100%, however to go beyond that level, the applicant would need to establish an entitlement to the special rate of pension. There would need to be an application for increase in pension under either section 14 or 15.
57. Section 24(2A) would need to be satisfied for the applicant. This section, so far as is relevant, requires as follows:
(a)A claim for pension under section 14 or a claim for increase in the rate of pension under section 15; and
(b)The veteran must have turned 65 before the claim was made; and
(c)Section 24(1)(a) and 24(1)(b) must apply to the veteran; and
(d)The veteran must be prevented from continuing to undertake remunerative work that the veteran was last undertaking before he made the application, and his prevention from continuing to undertake remunerative work must be due to the war caused injury alone; and
(e)The applicant must be suffering a loss of salary or wages as a result of him being prevented from undertaking paid work; and
(f)The veteran must have been undertaking his last paid work after he turned 65 years of age; and
(g)(ii) the veteran must have been working on his own account for a continuous period of ten years before he turned 65 years of age; and
(h)Section 25 does not apply to the veteran.
58. The Tribunal accepts that the applicant satisfies 24(2A), subsections (a), (b), (f) and (g). The question of whether the applicant satisfies the remaining subsections must be determined. That is, whether the applicant is capable of undertaking remunerative work for more than eight hours per week; section (24(2A)(c)); whether the applicant is prevented from undertaking remunerative work because of war caused injury alone (section 24(2A)(d)) and whether the applicant is suffering a loss of salary as a result (section 24(2A)(e)).
59. The respondent submitted that in answering the requirement of section 24(2A), the question is whether the applicant applied for a pension because age is a problem in getting work, or whether because of his age, he did not look for work.
60. In determining whether the applicant is totally and permanently incapacitated and is prevented from working for more than eight hours per week, the criteria in section 28 (a), (b) and (c) must be the guiding factors. That is, the Tribunal must only consider the veterans’ skills, qualifications and experience (section 28(a)); other kinds of work which are relevant to the skills and qualifications and experience of the veteran which could be reasonably undertaken (section 28 (b)); and taking account of any physical or mental impairment, what capacity exists for the veteran to undertake any kind of work listed in section 28 (b) (section 28(c)). In Chambers v Repatriation Commission (1995) 129 ALR 219, the Federal Court held that a narrow construction was not to be placed on the interpretation of the requirements of section 28. This means that Mr Aitken could not be required to undergo extensive re-training, merely to enable him to undertake remunerative work of any kind. Section 28 (b) includes a requirement to consider “reasonableness” (see Chambers at page 236). Clearly, Mr Aitken had skills as a cook and could be employed in a number of occupations of a related nature. He had over 50 years experience in undertaking such work. However, section 28(c) requires the Tribunal to have regard to the impairment attributable to his war caused injuries and the effect that this would have on his capacity to undertake the kinds of remunerative work for which he is qualified and suited.
61. While the applicant is now 70 years of age, the medical evidence indicates that his diagnosis of alcohol abuse/alcohol dependence is in remission. It does not appear from any of the medical reports that his anxiety condition is one which would prevent his participation in employment and there was no evidence presented on behalf of the applicant, or in medical reports, which would indicate that as a matter of fact, the veteran would be incapable of undertaking remunerative work of more than eight hours per week in the aggregate (section 24 (1) (b)).
62. In relation to section 24(1)(c), the Tribunal must determine whether Mr Aitken’s war caused injuries alone prevent him from undertaking remunerative work and whether he is also suffering a loss of salary or wages that he would not otherwise suffer if he did not have this incapacity. The requirements of section 24(1)(c) has been amplified by Nicholson J in Forbes and Repatriation Commission (2000) 101 FCR 50 at 52 to 53, his Honour said that the questions raised by section 24 (1)(c) must have regard to the requirements of section 24(2) of the Act. In this case, the applicant was over 65 years of age at the time of application and therefore section 24 (2A) applies. Essentially, the same considerations apply in section 24 (2A) (d) and (e).
63. The above two limbs are to be determined by the consideration of four questions which have been elucidated by the Full Court of the Federal Court in Flentjar and Repatriation Commission (1997) 48 ALD 1 at 4-5:
1. What was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 24(1)(c) of the Act?
2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3. If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4. If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?
64. In relation to the first question in Flentjar’s case the relevant “remunerative work” which Mr Aitken had previously undertaken must refer to work generally, rather than any particular job or employer where he had previously worked (Banovich and Repatriation Commission (1986) 69 ALR 395). The trade skills, qualifications and experience of the applicant were submitted by the respondent as including “cooking in commercial kitchens or fast food outlets, driving or plant operating, selling real estate, labouring and working as factory hand”. The respondent also submitted that the kinds of remunerative work which the applicant might reasonably undertake with his knowledge and experience would extend to a wide range of semi-skilled occupations. Given the applicant’s age and narrow range of employment for approximately 50 years, the Tribunal is of the view that the kind of remunerative work might be limited in this case to occupations involved in food preparation, cooking in kitchens in the retail trade and associated skilled or semi-skilled work in such organisations.
65. In relation to the second question in Flentjar’s case, Mr Aitken’s previous retail businesses (fish and chip shops) were unsuccessful largely because of the applicant’s alcohol dependence and lack of application to running those businesses. At the present time, the applicant has a diagnosis of alcohol dependence but it is “in full remission” and has been so for some years. There is no medical or other evidence to indicate that the applicant is prevented from continuing to undertake that work at the present time.
66. In relation to the third question above, the relevant issue here is whether the war caused injuries are the only factors which prevent the applicant from continuing to undertake the type of remunerative work referred to in question one. As stated above, there is no present reason why the applicant is prevented from working full-time on the basis of his diagnosis of alcohol dependence/alcohol abuse (in remission). However, the other secondary conditions are factors which would reduce his capacity to work effectively on a full time basis. There are other considerations. The applicant has not tried to look for work. This may be because of age, as submitted by the respondent. It may be that his anxiety condition makes him feel less capable of continuing to work. However, the Tribunal notes that the applicant became bankrupt and walked away from his last businesses after he ceased trading in a loss situation. This would also be an inhibiting factor for the applicant.
67. In making a determination about this question, the Tribunal must be mindful of making its decision “with an eye to reality”, which requires “common sense” to be used as the guiding principle (see Cavell and Repatriation Commission (1988) 9 AAR 534 at 539 per Burchett J). Taking account of the respondent’s submissions and the available evidence, the Tribunal is not satisfied that the applicant’s conditions alone, prevent him from continuing to work. The applicant has a cardiac condition which has been initiated, to some degree, by his past excessive drinking. However, that condition is now being treated and the applicant is not debilitated by the consequences of excessive alcohol use. Finding employment at the applicant’s age is undoubtedly a barrier to some degree, together with his past experience of running unsuccessful businesses. The Tribunal is not, however, of the opinion that the statutory requirement is satisfied that the applicant is prevented from continuing to undertake remunerative work because of his war caused injuries alone.
68. The second limb of section 24(1)(c) and influential in section 24 (2A)(e), is the issue dealt with by the fourth question in Flentjar’s case. That is, the Tribunal must determine whether the applicant is suffering a loss of salary or wages as a result of his war caused injuries alone and therefore, would not have suffered a loss of wages if he did not have that incapacity. It is this question which highlights the practical issue of what the applicant “would have done if he had none of his service disabilities…” (see Branson J in Flentjar’s case).
69. The assessment of this provision is intended to have a pragmatic result and the Tribunal is obliged to determine if the applicant has incurred a real loss of remuneration. As Fox J stated in Starcevich v Repatriation Commission (1987) 76 ALR 449 at 454 to 455, “It would be unnecessarily restrictive to assess the loss suffered by the veteran by reference only to the last work undertaken before the veteran's inability to work became complete.” But age is also a relevant factor. For example, in Repatriation Commission v Strickland (1990) 22 ALD 10 - a matter considered by the Full Court of the Federal Court - it was said that “…age 65 was not an irrelevant matter. It is a common retiring age for employees and can be taken to reflect somewhat arbitrarily the community’s general understanding of the effect of age upon ability to undertake gainful employment…of course, that is only a hypothetical case…But the point is that a Tribunal, especially a Tribunal which deals with issues of this nature regularly, might reasonably proceed from the premise that applications for pension made after that age would fail, unless facts were disclosed which tended to the conclusion that the veteran would then still be continuing to undertake remunerative work, but for his war-caused incapacity.”
70. The Tribunal must assess these questions according to substantial justice and merits of the case. In particular, the Tribunal is not empowered to make a decision in favour of an applicant who does not satisfy the relevant statutory criteria (see Kumar v Immigration Review Tribunal (1992) 36 FCR 544). But in considering the statutory requirements, of the second limb of section 24 (1)(c), the veteran will not be regarded as having suffered a loss of salary or wages where either of the two conditions specified are satisfied. It must be considered whether there are “other reasons”.
71. The Tribunal is satisfied that there are other reasons which have a contributory affect on the applicant ceasing to engage in remunerative work other than for his war caused injuries alone. (See Cavell v Repatriation Commission (1988) 9 AAR 534.). These are advancing age and difficulty in operating successfully in business. Therefore, having taken account of those factors together with the three subsections of section 28 as set down in the decision of Chambers, the Tribunal is satisfied that the applicant is not prevented from continuing to undertake remunerative work of a type which he had previously performed, on the basis of his service related conditions alone.
72. While the applicant does not satisfy the statutory requirements for a special rate of pension, the Tribunal notes the respondent’s concession that the applicant might be remunerated at the rate of 100% pension. However, the Tribunal makes no assessment about the rate of pension, but refers to this aspect to the Repatriation Commission for assessment.
Decision
73. The Tribunal decides that:
(a)The decision under review is set aside;
(b)The condition of alcohol dependence/alcohol abuse is war caused;
(c)The conditions of generalised anxiety disorder, hypertension, aortic stenosis and atrial fibrillation are related to the applicant’s condition of alcohol dependence/alcohol abuse and are as a consequence, war caused;
(d)Calculation of the rate of pension as a result of the above determinations is referred to the Repatriation Commission for assessment.
I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy, Senior Member
Signed: .Michelle Brazier
Legal Research OfficerDate/s of Hearing 11 October 2006
Date of Decision 5 January 2007
Counsel for the Applicant Mr MJ Taylor
Solicitor for the Applicant Wallace Davies Solicitors
Respondent Mr J Stoner, Departmental Advocate
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