Armstrong and Repatriation Commission (Veterans’ entitlements)

[2016] AATA 792

Armstrong and Repatriation Commission (Veterans’ entitlements) [2016] AATA 792 (10 October 2016)  

Division:  VETERANS’ APPEALS DIVISION

File Number:  2013/5055

Re:  PAMELA JEAN ARMSTRONG

APPLICANT

And:REPATRIATION COMMISSION

RESPONDENT

DECISION

Tribunal  Deputy President S A Forgie

Date  10 October 2016

Place  Melbourne

The Tribunal decides to:

affirm the decision of the Repatriation Commission dated 10 July 2012 and affirmed by the decision of the Veterans’ Review Board dated 12 July 2013.

…………[sgd]………….

Deputy President

CATCHWORDS – VETERANS’ ENTITLEMENTS – widow’s pension – death due to ischaemic heart disease contributed to in part by hypertension - whether death defence‑caused - whether veteran consumed, on average, at least 50 standard drinks per week in six month period prior to clinical onset of hypertension – decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 s 37
Defence Act 1903 ss 4(1), 17, 19(1), 19(3)
Military Compensation Act 1994
Veterans’ Entitlements Act 1986 ss 5AB(1), 5AB(2), 14(1), 14(3), 68(1), 69, 69(1), 69A, 69B, 70, 70(1)(a), 70(1)(c), 70(5), 70(5)(a), 70(5)(d), 120(4), 120B, 120B(1), 120B(3), 120B(4), 196B, 196B(3), 196B(14)

Amendment Statement of Principles No 12 of 2008
Amendment Statement of Principles No 4 of 2004
Statement of Principles No 2 of 2016; ss 9, 9(1), 10, 10(1), 10(2), 11
Statement of Principles No 36 of 2003; cll 4, 5(b), 6, 8
Statement of Principles No 64 of 2013; cll 5, 6(b), 7, 9
Statement of Principles No 90 of 2007; cll 5, 6(a), 7, 8, 9

CASES

Ogston v Repatriation Commission [1999] FCA 342; (1999) 86 FCR 578
Re Greenough and Repatriation Commission [2002] AATA 774; (2002) 70 ALD 470
Repatriation Commission v Gorton [2001] FCA 1194; (2001) 33 AAR 370
Repatriation Commission v Keeley [2000] FCA 532; (2000) 98 FCR 108
Repatriation Commission v Smith [1987] FCA 260; (1987) 15 FCR 327; 74 ALR 537; 7 AAR 17; 12 ALD 798
Repatriation Commission v Thompson [2001] FCA 341; (2001) 32 AAR 514

REASONS FOR DECISION

1. On 8 October 2015, Justice Kenny made an order that the decision of a differently constituted Tribunal dated 5 August 2015 be set aside and that the matter be remitted to the Tribunal to be tried according to law.[1]  Attached to and numbered consecutively with the order was a document that had been prepared by the solicitors for Mrs Armstrong and for the Repatriation Commission.  It set out the matters justifying the making of the consent orders.  Included in the document was a statement representing the issue that I must decide on remittal:

   “The Tribunal should have considered whether, on the balance of probabilities, the applicant’s late husband’s death arose out of, or was attributable to, any defence service.”

   [1] Federal Court proceedings VID490/2015

1. It is not in dispute between the parties, and I find, that Mr Armstrong served both in the Citizen Military Forces (CMF) on a part-time and later a full-time basis as well as in the Army on a full-time basis.  He died of ischaemic heart disease on 27 July 2009 when he was 80 years of age.  Listed among the causes of his death was hypertension from which he had suffered for the previous 20 years.  Under the Veterans’ Entitlements Act 1986 (VE Act), his widow, Mrs Armstrong, lodged an informal claim on 5 April 2012 followed by a formal claim on 4 July 2012 for a pension.  She did so on the basis that her late husband’s ischaemic heart disease was caused by his hypertension which was in itself contributed to by his defence-service. 

1. Mrs Armstrong has three steps to take to support her claim.  The first step is that her husband’s eligible defence service contributed to his consumption of alcohol.  The second is that, for at least six months before he suffered the clinical onset of hypertension, he was consuming, on average, at least 50 standard drinks of alcohol each week.  Consumption at that rate is consistent with one of the factors specified in Statement of Principles (SoP) 64 of 2013 made by the Repatriation Medical Authority (RMA).  If the first two steps are taken successfully, the third step would follow.  SoP 90 of 2007 would uphold the contention that Mr Armstrong’s hypertension contributed to his ischaemic heart disease that itself contributed to his death. 

1. I have not considered the first step for I have found that the second step has not been satisfied.  I have found that, during his service, Mr Armstrong’s consumption of alcohol was in the order of ten standard drinks, or 100g, each week.  It fell short of the 500g specified in SoP 64 of 2013.  That meant that the claim that Mr Armstrong’s death was defence-caused is not upheld by a SoP that his hypertension was, on the balance of probabilities, connected with his service.  Therefore, as I am not satisfied that Mr Armstrong’s hypertension is defence-caused, I am not satisfied that his ischaemic heart disease is defence-caused and so not satisfied that his death is defence-caused.  I have affirmed the decision of the Repatriation Commission (Commission) dated 10 July 2012 and affirmed by a decision of the Veterans’ Review Board (VRB) dated 12 July 2013.

BACKGROUND

1. The facts I have set out in this section of my reasons are uncontroversial and I make the findings on the basis of the evidence in the service records and that given by Mrs Armstrong. 

1. I find that the late Mr Armstrong was born on 26 October 1928.  He worked as a clerk at an accountancy firm from 1945 to 1949.  On 24 February 1949, he joined the CMF on a part‑time basis and remained until 30 December 1949 before attending Theological College between 1950 and 1952.  He was ordained as an Anglican priest in 1952 and worked in Bunbury in Western Australia as the parish priest from 1952 to 1974.  He married Mrs Armstrong on 3 November 1956. 

1. Mr Armstrong resumed duty with the CMF while continuing to be a parish priest.  In summary, his employment history may be summarised as follows:

Years	CMF/ARMY	Years	Other callings and occupations
24/2/49-30/12/49	CMF: part-time
1950-1952	Theological College
10/04/63-31/01/75	CMF: part-time	1952-1974	Anglican Parish Priest Bunbury, Western Australia
1963-1974	Army Reserve Chaplain Western Australia
01/02/75-17/09/79	CMF: full-time	1975-1983	Army Chaplain, full-time Victoria
18/09/79-24/10/83	Army: full-time
1983-1984	Hospital Chaplain Hollywood, Victoria
1985	Religious Instruction Teacher Essendon Grammar
1986-1994	Security Officer, Armaguard Locum Priest

1. Mr Armstrong was first diagnosed as suffering from hypertension on 29 December 1977.[2]  Hypertension suffered for the previous 20 years was specified as one of the causes of Mr Armstrong’s death on 27 July 2009.[3]

   [2] Exhibit 1 at 17a

   [3] T documents; T17 at 90

   THE EVIDENCE

2. The written records contain the following relevant entries of information given by Mr Armstrong regarding his drinking alcohol:

Date	Context	Entry
16 November 1977	Admission to Repatriation General Hospital	“Alcohol.  social only.”[4]
13 July 1979	Medical Questionnaire on entry to Army	“14.     Do you   Yes    No       a.       drink alcohol  ü         b.       smoke tobacco          ü c.       take any medicines           or drugs  ü”[5] In cross-examination, Mrs Armstrong identified her late husband’s signature at the bottom of the questionnaire.  She said that his answer was not true because he drank as much as she hated to admit it.
22 August 1983	Medical Questionnaire on discharge from Army	“9.      Do you   Yes    No a.       drink alcohol               ü         b.       smoke tobacco          ü c.       use or have experimented with marihuana or with drugs (other than prescribed)  ü”[6] The note to question 9a. states “moderate social only”. Mrs Armstrong said in cross-examination that this was not true but that her husband must have had a reason for saying that.  His reason was probably that he did not want everyone to know what he was drinking.
28 September 1983	Hospital admission Diagnosis: “Duputrens [sic] Rt Hand”	“drinks – special occassions [sic]”[7]
28 September 1983	Admission to Heidelberg Hospital Provisional diagnosis: “Duputrens [sic] Rt Hand”	“- alcohol – Little”[8]
1 March 2004	Mr Armstrong’s claim for Disability Pension for hands and fingers	“Have you ever consumed alcohol? Yes not on a regular basis.”

[4] Exhibit F at 332

[5] Exhibit F at 265

[6] Exhibit F at 11

[7] Exhibit F at 159

[8] Exhibit F at 167

1. Mrs Armstrong lodged two claims for a pension following her late husband’s death.  Together with her related applications for review and supporting statements, they are:

Date	Context	Entry
3 March 2010	Claim for pension	“Did the veteran ever consume alcohol?  Yes”[9]
Undated but relating to claim for pension dated 3 March 2010	Alcohol Questionnaire	“3.      Did the veteran ever drink alcohol on a regular basis?  (For the purposes of this question a regular basis includes an average of 3-4 standard drinks of alcohol per week or above or occasional ‘binge’ type drinking.  It does not include irregular drinking as a glass or two of alcohol only a few times a year such as on special occasions, birthdays, etc,) □ No – Please sign the form and return it to the Department. þ Yes Þ 4.       When did the veteran commence to drink alcohol? On enlistment 5.       What alcohol did the veteran drink? (Please describe the types of alcohol; eg beer, or wine, or spirits or combination of these.) Combination 6.       How much alcohol did the veteran drink?  (Please indicate the average number of standard drinks per day or per week.  A standard drink (10 grams of alcohol) approximates to a 10oz (285ml) glass of full strength beer, a standard glass of wine, a ‘nip’ of spirits or a standard measure of fortified wine.  If the veteran was a ‘binge’ type drinker, describe how often and the average amount of alcohol consumed on these occasions.  If you need more space to describe the veteran’s alcohol consumption, please attach an extra sheet). 10 x 10oz week 7.       Did the veteran ever permanently stop drinking alcohol? □ No þ Yes If so when?  1/7/2004 Why?  Quadruple B/Pass  Dr allowed 1 glass of Red on special occasions if wanted. … 9.       Did the amount of alcohol consumed change significantly at any time once the veteran first started drinking alcohol? þ  No – Please sign the form and return it to the Department. □  Yes – In the table below please record any major changes in the drinking habit.  Please include any known reasons for the change. …”[10] At the hearing before the previous Tribunal, Ms Armstrong elaborated on her answer to question 6: “… It was wrong. You think you made a mistake there? --- Yes, we worked out – we weren’t quite sure of what the ounces so we put 10 ounces, but it was 10 – the next bit was 10 bottles – well it was seven bottles of beer and three bottles of wine, because they were half – a bottle did two days.  So that’s what we put, because we weren’t quite sure of what that was – ounces. Is it your evidence that should be 10 bottles of beer and how many ---? --- Three bottles of wine. Right? --- Seven bottles of beer and three wine, because he would have half a bottle of wine each night. … In 1975? --- Yes.”[11] In cross-examination by Mr Brown, Mrs Armstrong said that an advocate had helped her complete the questionnaire.  She told Ms Ryan that people would give her husband a bottle if he had done something for them and that he bought others at the mess.
13 May 2010	Decision of delegate of Commission	Refusing claim as not related to service[12]
5 April 2012	Application to the VRB	“… This application has been lodged because the last SOP was incorrect Eg the death certificate had the wrong number of years regarding Hypertension. 20 Years instead of 32 years. High blood pressure was noted on the soldiers last day of service. The probable cause of the hypertension was Viral Pneumonia and running with his troops on morning Runs. He was over 50 when he participated in the running. His health was effected thereafter and he was unable to perform tasks around the house. Due to his high blood pressure he did not die a normal death The last years of his life had limited value… +     Postscript The Viral Pneumonia was contracted when the soldier was on Duty. It is probably that the High blood pressure was responsible for his heart attack. The soldier did not die a natural death this can be contributed to his Army service, Hypertension is elevated blood pressure ( ADF Health Status Report page 12-6 para 12.25 ) I rely on SOP2007 factor 6 (a ) To The Delegate please reconsider your earlier finding.”[13]
12 June 2012	Replacement application to the VRB	“… The death related to service as he was on duty when he contracted Viral pneumonia that gave him Hypertension, the death certificate confirms the duration of the Hypertension thereafter the veteran suffered from high blood pressure. …”[14]
18 June 2012	Decision of delegate of Commission	Applications to VRB made outside 12 month period and unable to be considered.[15]
4 July 2012	Claim for pension	“25      How do you believe the veteran’s service caused or contributed to his or her death? Where at all possible, please attempt to address the factors in the Statements of Principle that cover the condition named on the death certificate as the cause of death, and/or any contributing factors. *  Viral pneumonia contacted [sic] whilst in camp Factor for the SoP.  Hypertension can cause a heart attack if the veteran had high blood pressure for 20 years His councilling [sic] of Vietnam vets caused him to be extremely upset.  His wife notes his behaviour in accompanying documentation.  His Viral Pneumonia plus diabetes affected his heart. * Viral Pneumonia Contracted whilst in camp PART E”         Tobacco and Alcohol IMPORTANT – Some conditions may be caused, contributed to or aggravated by tobacco or alcohol consumption.  If you believe that tobacco or alcohol consumption is relevant to any of the causes of death, more information may be needed by the person handling your claim.  Please tick the relevant boxes so that the correct questionnaire can be sent to you or your representative. 26       … 27 Did the veteran ever consume alcohol? □ No þ Yes  Occassionely [sic]”[16] In cross-examination, Mrs Armstrong said that she and not written the word “Occassionely” and did not know who had.  She had written the answer to Question 25 and had signed the claim.
10 July 2012	Decision of delegate of Commission	Refusing claim as not related to service[17]
10 August 2012	Application for review	“I did not say that my husband death was caused by viral pneumonia.  I say it was caused by Ischaemic Heart Disease.”[18]
12 July 2013	VRB’s decision	“19. Mrs Armstrong said that her late husband was a social drinker only.”[19] In cross-examination, Mrs Armstrong said that she could not remember saying that. Basis of decision was that, while hypertension is a relevant factor relating to Ischaemic Heart Disease, contracting a viral condition such as viral pneumonia is not a relevant factor in SoP 36 of 2003 as amended in contracting hypertension.  Therefore, the VRB found that there was no link between Mr Armstrong’s hypertension, and so his Ischaemic Heart Disease, and his service.[20]
11 August 2014	Mrs Armstrong’s statement	“Prior to enlistment Fred was only a social drinker.  He tended to only consume on weekends if we had visitors.  During his service in the Australian Army, Fred took to consuming alcohol every day.  The amount which he consumed came as a shock to me.  I believe that he drank alcohol every day at lunchtime.  He would typically drink at home one large bottle (750ml) of beer plus about one half bottle (i.e. about 375 ml) of red wine with his meal.  Many times I had to collect Fred when he attended a function at the Mess because he had had too much to drink.  He often consumed alcohol to the point that he vomited.”[21]

[9] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents); T4 at 10

[10] T documents; T4 at 22-24 Question 8 related to the claimant’s reasons for considering that the veteran’s consumption was due to, or contributed by, service. The answer is reproduced in part at [14] below

[11] Transcript, 2 July 2015, at 31-32

[12] Reference made to decision in subsequent applications to VRB and letter from Commission dated 18 June 2012 referred to below in table.

[13] T documents; T4 at 37

[14] T documents; T10 at 58

[15] T documents; T11 at 59

[16] T documents; T12 at 63

[17] T documents; T13 at 68-72

[18] T documents; T14 at 73

[19] T documents; xxxii

[20] T documents; xxix-xxxiv

[21] Exhibit A at 2

1. The extract from sets out the approximate number of standard drinks represented by volume of various strengths of beer, wines and spirits (Standard Drinks Guide).  Of relevance in this case are the figures for beer and red wine:

   “NUMBER OF STANDARD DRINKS - BEER

   Full strength 4.8% alc. vol

   285 ml glass – 1.1 standard drinks

   375 ml bottle or can – 1.4 standard drinks

   425 ml glass – 1.6 standard drinks

   24 x 375 ml case – 34 standard drinks

   Mid strength 3.5% alc. vol

   285 ml glass – 0.8 standard drinks

   375 ml bottle or can – 1 standard drink

   425 ml glass – 1.2 standard drinks

   24 x 375 ml case – 24 standard drinks

   Low strength 2.7% alc. vol

   285 ml glass – 0.6 standard drinks

   375 ml bottle or can – 0.8 standard drinks

   425 ml glass – 0.9 standard drinks

   24 x 375 ml case – 19 standard drinks

   NUMBER OF STANDARD DRINKS - WINE

   Red wine 13% alc. vol

   100 ml standard serve – 1 standard drink
   150 ml average restaurant serving – 1.5 standard drinks
   750 ml bottle – 7.7 standard drinks
   2 litre cask – 21 standard drinks
   4 litre cask – 41 standard drinks

   …”[22]

   [22] Exhibit C

1. Mrs Armstrong said that she was aware that her husband had conducted Drug and Alcohol counselling with the young ones.  When asked how he could conduct that if he were drinking, she replied that she had never asked him.  In response to the suggestion that his drinking was inconsistent with his conducting that counselling, she agreed that it was but could not say that her husband had not drunk when he had.  It really upsets her to say that he did.

1. Mrs Armstrong said that she has always known that her husband drank but not how much he drank.  A long time ago, someone told her that, had he drunk that much today, he would have been over the limit for driving.  She had a fit about the thought of that.  At the time, all that she knew was that he drank too much.

1. In her statement, Mrs Armstrong referred to her husband’s work:

   “Fred’s hours were a minimum of 8.00am (causing him to leave home between 7.00am and 7.30am) until about 4.30pm (so that on occasions he would be home by about 5.00pm to 5.30pm).  He, however, usually worked longer hours.  He worked with soldiers who were undertaking drug and alcohol rehabilitation.  He would visit families experiencing marital difficulties.  He would help soldiers with financial and legal difficulties.  He would visit soldiers or members of their family in hospital.  In short, he provided all aspects of pastoral care.  He also endured a number of traumatic events (one example of a traumatic event was that after farewelling a discharging soldier in Broadmeadows that person was killed in a motor vehicle accident on his way home on a motorbike and Fred attended the scene).  There were numerous occasions when Fred provided support to grieving families following deaths (for example, the cot death of a child while his father was on camp and on that occasion the police asked him to attend because the child’s mother would not relinquish the body).”[23]

   [23] Exhibit A at 1-2

This is consistent with the explanation she gave in the questionnaire relating to her claim dated 3 March 2010.  In answer to question 8, she referred also to his:

“… Travelling to live in Officers’ Messes whilst attending to his pastoral duties also his counselling & conducting services.

Attending Officers Mess Dinners & lunches
Being called out at all hours to attend soldiers on their death bed.  Also familys in crisses & soldiers in trouble with Police.

…”[24]

[24] T documents; T 4 at 23

1. In her oral evidence, Mrs Armstrong gave further examples of the pastoral work that her husband had done with the service families living around them.  He would tell her of the problems those families faced but not the identity of the families.  Those problems included those relating to the consequences of exposure to Agent Orange.  She could not really help him, she said, as the issues were way out of her control.  She did not advise him but talked about them.  Mrs Armstrong thought that the people who came for his advice liked him very much.  When asked whether her husband took pride in his work or gained satisfaction from it, she replied that he never mentioned it; he just wanted to do the best he could.

1. Mr Armstrong consistently received outstanding evaluation and development reports for his work.  Comments related to his reliability and to his having patience, commonsense and cheerfulness are made.[25]  To take that made on 23 July 1981 as one example of those preceding it, the comments read:

   “Padre Armstrong is a tower of strength in the Broadmeadows Military Area.  He is respected by military and civilian members.  He has been the driving force in the recent seminars for all ranks on Alcohol and Drug Abuse arranged with the Victorian Foundation for Alcohol and Drug Abuse.

   In his own time he does much counselling.

   Padre Armstrong is a most effective Padre.”[26]

   [25] Exhibit 2 at 146 dated 1 February 1978

   [26] Exhibit 2 at 108

1. A letter of commendation written to Mr Armstrong included the following paragraphs:

   “          Throughout your Army chaplaincy you have shown a genuine concern for people and a readiness to offer your time and abilities to meet their needs. Your special efforts to assist those who have been afflicted by alcoholism and your willingness to acquire the knowledge and develop the skills needed to be an effective counsellor and friend to such people have been admired by your fellow chaplains and many other army personnel.

   Your initiative and determination to have established at Broadmeadows chapel, counselling, and related recreational facilities have been praised. Those who assisted you in your accomplishment have held you in high regard and have acknowledged the worth of your chaplaincy.”[27]

   [27] T documents; T7 at 55

1. Mrs Armstrong said that such reports and statements were “news to her”.  When Mr Brown suggested to her that such exemplary reports were not consistent with her husband’s drinking, she replied that he was drinking and that he must have been acting normally; not staggering.  She said that she had to help him once a month or, if there were other parties, more often.  At times, her son picked up his father but most of the time she did.  Mrs Armstrong would get him into bed.  The monthly episodes started about six or eight months after arriving in Victoria in 1975 to take up the full-time position of Army Chaplain.  There had been a gradual increase in his drinking but it had taken her six or so months to realise what he was doing. 

LEGISLATIVE FRAMEWORK

Dependant’s eligibility for a pension

1. Subject to certain exceptions, s 14(1) of the VE Act provides that a dependant of a deceased veteran may make a claim for a pension in accordance with s 14(3). Section 70 in Part IV of the VE Act sets out the circumstances in which a dependant is eligible for a pension. Under ss 70(1)(a) and (c), the Commonwealth is, subject to the legislation itself, liable to pay a pension to the dependants of a member of the Forces who has died and whose death was defence-caused. This raises two issues. One is the meaning of the expression “member of the Forces” and, if so, whether the member’s death was “defence‑caused”.

1. The expression “member of the Forces” is a person to whom Part IV applies by virtue of ss 69, 69A or 69B. Only s 69 is relevant.[28] Section 69(1) provides, in so far as it is relevant that:

   [28] Section 69A applies to a person who has rendered, or is rendering, hazardous service as a member of the Defence Force. Section 69B applies to a person who has rendered British nuclear test defence service. Neither applies to the circumstances of the late Mr Armstrong’s service.

   “Subject to this section, where a person:

   (a)has served in the Defence Force for a continuous period that commenced on or after 7 December 1972 and before the terminating date; or

   (b)…

   this Part applies to the person:

   (c)if the person:

   (i)has served on continuous full-time service as a member of the Defence Force after 6 December 1972; and

   (ii)has, whether before or after that date, completed 3 years’ effective full-time service as such a member; …”

1. The expression “Defence Force” has the same meaning as in the Defence Act 1903 (Defence Act).  That Act defines the “Defence Force” as the “Australian Defence Force” (ADF).[29]  The expression “ADF” is defined in s 17[30] to consist of the Royal Australian Navy, the Australian Army and the Royal Australian Air Force.  The “Australian Army” consists of the Chief of Army, the Regular Army and the Army Reserve.[31]  The “Army Reserve” consists of officers appointed to, and soldiers enlisted in, the Army Reserve as well as members of the Defence Force transferred to the Army Reserve.[32]  Through a series of amendments, the Army Reserve can be traced back through earlier forms including the Citizen Military Forces (CMF).  There was no dispute between the parties, and I find, that Mr Armstrong’s service first as a full-time member of the CMF from 1 February 1975 to 17 September 1979 and then as a full-time member of the Regular Army is continuous full‑time service as a member of the Defence Force.  As that service exceeded three years, Mr Armstrong is a member of the Forces to whom Part IV of the VE Act applies.

   [29] Defence Act; s 4(1)

   [30] Defence Act; s 4(1)

   [31] Defence Act; s 19(1)

   [32] Defence Act; s 19(3)

1. With exceptions that are not relevant in this case, s 70(5) of the VE Act prescribes the circumstances in which the death of a member of the Forces shall be taken to have been defence-caused. Only that in s 70(5)(a) is relevant when it provides that:

   “For the purposes of this Act, the death of a member of the Forces …. shall be taken to have been defence-caused … if:

   (a)the death … arose out of, or was attributable to, any defence service … of the member; …”

   In the context of this case, the expression “defence service” means service that is continuous full-time service rendered as a member of the Defence Force on or after 7 December 1972 and before 7 April 1994 when the Military Compensation Act 1994 came into operation.[33]

   [33] VE Act; s 68(1)

The standard of proof

1. The causal link between the death of a member of the Forces and his or her defence service must be established on the basis of “reasonable satisfaction”.[34]  The meaning of the expression “reasonably satisfied” has been considered by the Federal Court in Repatriation Commission v Smith.[35]  After considering the authorities, Beaumont J, with whom Northrop and Spender JJ agreed, concluded that the Tribunal:

   “… should have asked itself whether on the facts of the case, it was persuaded on the civil standard. There is, in this connection, a distinction of substance to be drawn between the probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other (see Re Repatriation Commission and Delkou (1986) 4 AAR 344; Re Easton and Repatriation Commission (1987) 6 AAR 558; Re Repatriation Commission and Falkner (1987)12 ALD 87).”[36]

   [34] VE Act; s 120(4)

   [35] [1987] FCA 260; (1987) 15 FCR 327; 74 ALR 537; 7 AAR 17; 12 ALD 798; Northrop, Beaumont and Spender JJ

   [36] [1987] FCA 260; (1987) 15 FCR 327; 74 ALR 537; 7 AAR 17; 12 ALD 798 at [25]; 335; 547; 26; 800

1. Section 120(4) must be read with s. 120B. Section 120B provides, again in so far as it is relevant to this case, that:

(1)“This section applies to any of the following claims made on or after 1 June 1994:

(a)    …

(b)    a claim under Part IV that relates to the defence service (other than hazardous service and British nuclear test defence service) rendered by a member of the Forces.

…

(3)In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that … the death of a person was war-caused or defence-caused only if:

(a)    the material before the Commission raises a connection between the … death of the person and some particular service rendered by the person; and

(b)    there is in force:

(i)a Statement of Principles determined under subsection 196B(3) or (12); or

(ii)a determination of the Commission under subsection 180A(3);

that upholds the contention that the … death of the person is, on the balance of probabilities, connected with that service.

(4)Subsection (3) does not apply in relation to a claim in respect of … the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(3), nor declared that it does not propose to make such a Statement of Principles, in respect of:

(a)    the kind of injury suffered by the person; or

(b)    the kind of disease contracted by the person; or

(c)    the kind of death met by a person;

as the case may be.”

1. The Authority to which reference is made in s 120B(4) is the RMA. The RMA must determine a SoP in relation to claims to be assessed according to, among others, s 120(4), and so by reference to reasonable satisfaction, on the other.[37]   I am concerned only with those relating to assessment by reference to reasonable satisfaction:

   [37] VE Act; s 196B

“If the Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that a particular kind of injury, disease or death can be related to:

(a)…

(b)defence service (other than hazardous service and British nuclear test defence service) rendered by members of the Forces;

(ba)…

the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:

(d)the factors that must exist; and

(e)which of those factors must be related to service rendered by a person;

before it can be said that, on the balance of probabilities, an injury, disease or death of that kind is connected with the circumstances of that service.”[38]

[38] VE Act; s 196B(3)

1. The opening words of the provision refer to a particular injury or disease’s “being related to” the veteran’s service. Section 196B(14) defines the concept of “related to service” in terms consistent with those used in s 70(5)(a) and (d) in relation to “defence-caused injury” and “defence‑caused disease”. In so far as it is relevant, s 196B(14) provides that:

“A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:

(a)…

(b)it arose out of, or was attributable to, that service; …

(c)…

(d)it was contributed to in a material degree by, or was aggravated by, that service; …

(e)…

(f)…

(g)…”

“Sound medical scientific evidence” has the meaning given in s 5AB(2):[39]

[39] VE Act; s 5AB(1)

“Information about a particular kind of injury, disease or death is taken to be sound medical‑scientific evidence if:

(a)the information:

(i)is consistent with material relating to medical science that has been published in a medical or scientific publication and has been, in the opinion of the Repatriation Medical Authority, subjected to a peer review process; or

(ii)in accordance with generally accepted medical practice, would serve as the basis for the diagnosis and management of a medical condition; and

(b)in the case of information about how that kind of injury, disease or death may be caused - meets the applicable criteria for assessing causation currently applied in the field of epidemiology.”[40]

[40] VE Act; s 5AB(2)

1. Two SoPs are relevant in this case.  One relates to Ischaemic Heart Disease and the other with Hypertension.  When the Tribunal initially made its decision, Ischaemic Heart Disease was the subject of SoP 90 of 2007 as amended.  That SoP was also in force when Mrs Armstrong lodged her claim but has since been revoked by SoP 2 of 2016 with effect from 25 January 2016.  Similarly, SoP 36 of 2003 as amended by SoP 4 of 2004 and SoP 12 of 2008 was in force when she lodged her claim but had been revoked and replaced by SoP 64 of 2013 when the Tribunal made its earlier decision.  How do I approach the varying SoPs?

1. In the case of Re Greenough and Repatriation Commission,[41] I reviewed the previous authorities including Repatriation Commission v Keeley,[42] Repatriation Commission v Gorton,[43] Ogston v Repatriation Commission[44] and Repatriation Commission v Thompson.[45]  For the reasons I gave in that case and adopt in this, I concluded that these authorities require that:

   “… the order in which the Tribunal is to approach the SoPs is:

   first consider the claim by reference to the SoP in force at the date of the Tribunal’s decision;

   if the consideration is favourable to the applicant, that is an end of the matter; and

   if the consideration is not favourable to the applicant, consider the claim by reference to the SoP in force at the date of the Commission's determination (Gorton).”[46]

   [41] [2002] AATA 774; (2002) 70 ALD 470

   [42] [2000] FCA 532; (2000) 98 FCR 108; Lee, Cooper and Kiefel JJ

   [43] [2001] FCA 1194; (2001) 33 AAR 370; Heerey, Emmett and Allsop JJ

   [44] [1999] FCA 342; (1999) 86 FCR 578; Burchett, Branson and RD Nicholson JJ

   [45] [2001] FCA 341; (2001) 32 AAR 514; Drummond, Whitlam, Emmett JJ

   [46] [2002] AATA 774; (2002) 70 ALD 470 at [59.7]; 487

1. In reaching that conclusion, I have not gone back to the parties for their submissions whether they agree with this position because there are no practical differences between the SoPs for the purposes of this case.  Starting with SoP 90 of 2007 and SoP 2 of 2016, except for their numbers and the earlier being described as a “clause” and the latter a “section”, there is no difference of substance between cl 6 of the earlier SoP and s 9 of the latter.  They provide:

SoP 90 of 2007: clause 6

SoP 2 of 2016: section 9

“The factor that must exist before it can be said that, on the balance of
probabilities, ischaemic heart disease or death from ischaemic heart disease is connected with the circumstances of a person’s relevant

service is:

(a)       having hypertension before the clinical onset of ischaemic heart disease; …”

“At least one of the following factors must exist before it can be said
that, on the balance of probabilities, ischaemic heart disease or
death from ischaemic heart disease is connected with the

circumstances of a person’s relevant service:

(1)       having hypertension before the clinical onset of ischaemic heart disease; …”

1. Clause 5 of SoP 90 of 2007 provides that:

   “Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.”

The qualification in cl 7 is not relevant in this case.  Section 10 of SoP 2 of 2016 combines the substance of cll 5 and 7 of the revoked SoP.  Section 10(1) mirrors cl 5 of the revoked SoP and s10(2) mirrors cl 7.  Section 10(1) provides that:

“The existence in a person of any factor referred to in section 9, must be related to the relevant service rendered by the person.”

1. Both SoPs provide for the application of other SoPs.  As expressed by cl 8 of SoP 90 of 2007:

   “In this Statement of Principles if a relevant factor applies and that factor includes an injury or disease in respect of which there is a Statement of Principles then the factors in that last mentioned Statement of Principles apply in accordance with the terms of that Statement of Principles as in force from time to time.”[47]

   [47] See also SoP 2 of 2016; s 11

1. The factor expressed in cl 6(a) of SoP 90 of 2007 and that in s 9(1) of SoP 2 of 2016 includes hypertension.  Hypertension is a disease in respect of which there is a SoP.  When Mrs Armstrong lodged her claim, the relevant SoP was SoP 36 of 2003 as amended by SoP 4 of 2004 and SoP 12 of 2008.  Clause 5 provided that:

   “The factors that must exist before it can be said that, on the balance of probabilities, hypertension or death from hypertension is connected with the circumstances of a person’s relevant service are:

   (a)…

   (b)consuming an average of at least 500 grams of alcohol per week for a continuous period of at least the six months before the clinical onset of hypertension; or

   (c)-(z)…”

1. Clause 8 provides that:

   “‘alcohol’ is measured by the alcohol consumption calculations using the Australian Standard of 10 grams of alcohol per standard alcoholic drink …”.

Subject to a qualification in cl 6 that does not apply, cl 4 provides that the factor must be related to the relevant service provided by the person.

1. SoP 64 of 2013 came into force on 4 September 2013 and continues to be in force.  Clause 6 provides that:

   “The factor that must exist before it can be said that, on the balance of probabilities, hypertension or death from hypertension is connected with the circumstances of a person’s relevant service is:

   (a)…

   (b)consuming an average of at least 500 grams of alcohol per week for at least the six months before the clinical onset of hypertension; or

   (c)-(cc)…”

1. Subject to cl 7, cl 5 provides that the factor must be related to the relevant service rendered by the person.  Like SoP 36 of 2003 as amended, cl 9 of SoP 64 of 2013 provides for the measurement of “alcohol” by reference to the alcohol consumption calculations utilising the Australian standard of ten grams of alcohol per standard alcoholic drink.

CONSIDERATION

1. If I were to accept the evidence that Mrs Armstrong gave at the hearing, I would find that, from approximately the middle of 1975, her late husband would drink a 750ml bottle (or “long neck” as she described it) of full strength beer each night as well as half a bottle of red wine.  On the basis of the Standard Drinks Guide, I would find that this equated with 2.8 standard drinks of beer and 3.85 standard drinks of red wine being a total of 6.65 standard drinks each day.  He drank that every day of the week meaning that he consumed 46.55 standard drinks each week.  Mrs Armstrong also said in her evidence that he had a beer each lunchtime because she could smell it on his breath.  She did not specify the strength of the beer.  If it were a 285ml glass of full strength, it would be another 7.7 standard drinks each week.  If it were mid strength, it would be another 3.5 standard drinks and, if low strength, another 3 standard drinks each week.  In the case of the more alcoholic beers, he would be just over 50 standard drinks each week and, if the lighter beer, he would be just under 50 on a weekly basis. 

1. The figures would be so close to 50 standard drinks that I might find that Mr Armstrong had consumed an average of at least 500 grams of alcohol on the basis that each standard drink contained 10 grams of alcohol.  Putting aside the role of his service in leading him to drink, that would satisfy Factor 6(a) of SoP 64 of 2013 as her oral evidence at the hearing would support a finding that he continued to drink that amount from approximately the middle of 1975 and at least until he retired from the Army as he was required to do when he was 55 years of age in 1983.  As he had been diagnosed with hypertension on 29 December 1977, he would be taken to have, on average, consumed at least 500 grams of alcohol per week for at least six months before that diagnosis.  It would have made no difference that he later reduced his intake when he underwent a Quadruple Bypass on 1 July 2004. 

1. If I were to get to that stage, I would then look to Mrs Armstrong’s evidence regarding the stress and pressures that Mr Armstrong experienced in his work as the Army Chaplain in Victoria.  She gave evidence of the issues that he faced in his work and of the distressing nature of those issues.  Her husband talked to her about them.  Mrs Armstrong has presumed that her husband’s increased drinking was attributable to those issues but she did not refer to any specific incidents that led to his drinking or link his work with his increase in drinking.  The only link that she drew related to his taking up full-time duties as the Army Chaplain in Victoria and the issues arising from the location of their homes as they were located in areas where other service families lived.

1. Ms Ryan submitted that, if I do not accept Mrs Armstrong’s evidence, then I have to find either that she is mistaken or that she is not telling the truth.  She cannot be mistaken for she has a detailed memory of events when he came home smelling of alcohol, when he was swinging on the fence on Mess nights and of his telling her that people bought him a drink every day.  As to the truth, Mrs Armstrong is telling it.

1. I do not accept Ms Ryan’s submission.  In reviewing any administrative decision, I must consider all of the evidence in order to make findings of fact required by the legislation under which that decision is made.  There will be occasions when the evidence of one witness is crucial and determinative but that conclusion will only be reached after considering all of the evidence that is relevant and probative of the issues on which findings of fact must be made.  What evidence meets the description of being relevant and probative is determined by the issues.  In a case such as this, the evidence of Mrs Armstrong is very important.  She lived with her husband for many years and was in a position to observe changes in her husband’s habits.  There are, however, others outside the family who had not known Mr Armstrong as long as Mrs Armstrong had but they were in a position to observe him in his work and to know those who interacted with him in that work.  They were his colleagues and supervisors in the Army.  Beyond those witnesses is the evidence represented by Mr Armstrong’s own description of his drinking habits and the descriptions given by others.  Those others include descriptions given by Mrs Armstrong who has signed forms containing those descriptions even though I accept that she has not written some of them in her own hand.

1. When I go to that wider evidence, I see Mr Armstrong’s own descriptions of his drinking habits as ranging from social drinking in November 1977 to not at all on 13 July 1979 and then moderate social drinking on 22 August 1983.  His own descriptions of his drinking continue in similar vein.  They are consistent with the comments made by his supervisors in the evaluation and development reports.  They do not address any alcohol issues regarding Mr Armstrong.  At the same time, they recognise that there are alcohol and drug issues in the Army for they commend his work in that area with members of the Army across all of the ranks.  That is to say, those writing the reports have not failed to address any issues that Mr Armstrong had because they were not aware of the effect of excessive consumption of alcohol.  They have been aware and have not raised any issues.  Mrs Armstrong’s explanation is that he was able to hide his drinking from them but the explanation may equally be that he was not seen to be consuming at any excessive level or that it was not affecting his work.  Neither explanation means that he was not doing so but, again, the references are just one part of the evidence.

1. Another part of the evidence relates to the statements that Mrs Armstrong herself has made about her late husband’s drinking.  In her claim lodged in 2010, she wrote that he consumed “10 x 10oz week”, and so ten standard drinks a week.  The transcript of the previous hearing shows that Mrs Armstrong explained that she did not understand what “10oz” meant and that she had intended to say that he drank ten bottles each week i.e. seven bottles of beer and three of wine.  Her explanation must be seen in light of the explanation of a “standard drink” that is set out in the questionnaire immediately before she wrote “10 x 10oz week”.  It gives a practical description of what a standard drink is.  Mrs Armstrong’s explanation must also be seen in light of question 3 when it asks whether the veteran ever drank alcohol on a regular basis.  There follows a statement that, for the purposes of this question, a “regular basis” includes an average of three to four standard drinks of alcohol per week or more or occasional binge drinking.  Her answer of “10 x 10oz week” would bring her description of her husband’s drinking within that of his drinking on a “regular basis”.

1. Mrs Armstrong’s description of her husband’s consumption in 2010 is consistent with the description given in her claim form dated 4 July 2012 when she said that he had consumed alcohol occasionally but it does not accord with her later descriptions of his drinking patterns.  Certainly, on her initial description, the late Mr Armstrong’s drinking averages a little over one standard drink each day of the week.  It does not, however, equate with seven bottles of beer and three bottles of wine each week that Mrs Armstrong later described and repeated in her evidence at  the hearing.  Mrs Armstrong said that she had not written the word “Occassionely” but acknowledged signing the claim.  I accept that she has had assistance in completing the claim forms but Mrs Armstrong has signed the claim form.  In doing so, she has placed her signature immediately after declaring that the details she had given in the claim were complete and correct and that she was aware that there are penalties for making false statements. There is no suggestion that she did not understand the form.

1. Having regard to all of the evidence, I am satisfied on the balance of probabilities, and so reasonably satisfied, that the late Mr Armstrong consumed alcohol but did not consume, on average, at least 500 grams of alcohol per week for a continuous period of at least the six months before the clinical worsening of his hypertension.  On average, he consumed in the order of 100 grams of alcohol each week.  Therefore, I also find that the contention that Mr Armstrong’s hypertension was connected with his service is not upheld by SoP 64 of 2013 relating to hypertension and so not by SoP 90 of 2007 relating to Ischaemic Heart Disease or any of the other SoPs that have applied from time to time.[48]  In view of that finding, I do not need to consider the connection between Mr Armstrong’s drinking alcohol and his service.  That means that I affirm the decision of the Commission dated 10 July 2012 which was itself affirmed by a decision of the VRB dated 12 July 2013.

   [48] See [27]-[35] above

1. In making this decision, I wish to emphasise that I regard Mrs Armstrong as telling the truth but it is a truth that she believes when she spoke it at the hearing.  I do not accept that she believed it in 2010 when she first made her claim but she has come to believe it having discussed the matter with advisers over the years.  On behalf of the Commission, Mr Brown was also at pains to emphasise that it was not attacking her credibility.  Like all of us, our memories may fade but they may also change.  They may be affected by subsequent events.  What do not change are the records that were kept over the years.  While other evidence may cast light upon them, they do maintain their consistency.  That is what has happened in this case and part of those records consists of the claims made by Mrs Armstrong.  They reveal a man who drank alcohol but not to a level that Mrs Armstrong now recalls.  It is to be hoped that Mrs Armstrong’s memories of a husband much admired and respected for his pastoral work in the Army and the CMF before that do not change.

I certify that the forty-five preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie.

Signed:       ………..................[sgd]....................................

Associate

Date of Hearing   20 June 2016

Date of Decision  10 October 2016

Counsel for the Applicant               Ms Fiona Ryan

Solicitor for the Respondent           Mr Jesse Krstevski

Williams Winter

Solicitor for the Respondent           Mr David Brown

Australian Government Solicitor