Benham and Repatriation Commission
[2000] AATA 991
•14 November 2000
DECISION AND REASONS FOR DECISION [2000] AATA 991
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1998/1383
VETERANS' APPEALS DIVISION )
Re MARGERY BENHAM
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr M J Sassella, Senior Member Dr M E C Thorpe, Member
Date14 November 2000
PlaceSydney
Decision The decision under review is affirmed.
..............................................
Senior Member
CATCHWORDS
VETERANS' AFFAIRS – widow pension – statement of principles – war-caused death – alcohol dependence – alcohol abuse - ischaemic heart disease – hypertension - clinical onset
Veterans' Entitlements Act 1986 ss 6A, 7(1)(a), 8(1), 11, 13, 120, 120A
Repatriation Commission v Keeley (2000) 98 FCR 108
REASONS FOR DECISION
Mr M J Sassella, Senior Member Dr M E C Thorpe, Member
This is an application by Margery Benham ("the Applicant") for a review of a decision made by the Veterans' Review Board ("VRB") dated 6 August 1998. That decision affirmed a decision of the Repatriation Commission ("the Respondent") that Applicant was not eligible for a Widow's Pension because the death of her husband, Lawrence Spencer Benham ("the veteran"), was not causally related to service.
At the hearing the Applicant was represented by Mr Lurie and the Respondent was represented by Ms Doggett, an advocate from the Department of Veterans' Affairs.
The documents produced pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were taken in as evidence (TD1) in addition to the following material:
Exhibit No Description Date
A1 A2 A3 A4 A5 A6 A7 A8 R1 R2 R3 R4 Report of Dr Miller Statement of Margery McPherson Benham Applicant's Amended Statement of Facts and Contentions Statement if Margery McPherson Benham Log book of Lawrence Benham K.C. Baff, Maritime is Number Ten: The Sunderland Era, (1983) Griffith Press, South Australia, pages 152 and 153 Handwritten notes of Lawrence Benham (1 page) Handwritten notes of Lawrence Benham (2 pages) Respondent's Statement of Facts and Contentions Neringah Hospital records relating to Lawrence Benham Report of Dr Richards Medical Records relating to Lawrence Benham from the Department of Veterans' Affairs medical file 16 September 1999 29 November 1999 undated (faxed 1 May 2000) 19 May 2000 1940 – 1942 1983 undated undated 8 November 1999 various 19 July 1999 20 October 1955
LEGISLATION
The veteran served in the Royal Australian Air Force ("RAAF") from 17 May 1937 to 2 May 1946. He served in the United Kingdom, the Middle East and Gibraltar as an air gunner, which constitutes operational service as defined by section 6A the Veterans' Entitlements Act 1986 ("the Act"). Section 7(1)(a) of the Act provides that a person who has rendered operational service is taken to have also been rendering eligible service.
Section 13 of the Act provides that the Commonwealth is liable to pay a pension to dependants of a veteran whose death is "war-caused". Section 11 of the Act defines dependant as including a widow of a veteran.
Section 8(1) of the Act defines war-caused death and provides:
"8 War-caused death
(1)Subject to this section, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
(a)the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
(c)the death of the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d)in the opinion of the Commission, the death of the veteran was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible way service; or
(e)the injury or disease from which the veteran died:
(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; or
(f) the injury or disease from which the veteran died is an injury or disease that has been determined in accordance with section 9 to have been a war-caused disease, as the case may be
…;
but not otherwise."
Given that the veteran rendered operational service, sections 120(1) and 120(3) of the Act require the Tribunal to find that his death was war-caused unless the material before it does not raise a reasonable hypothesis connecting the death with his service.
As the Applicant's claim was lodged after 1 July 1994, section 120A of the Act applies. It provides, as relevant:
"120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
…
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person within the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); …
that upholds the hypothesis.
…"
The Tribunal must therefore assess the reasonableness of the Applicant's hypotheses connecting the veterans' death with service in accordance with applicable Statements of Principles determined by the Repatriation Medical Authority ("RMA").
The RMA has issued a number of statements relating to ischaemic heart disease, hypertension and psychoactive substance abuse or dependence or alcohol abuse or dependence, being the conditions the Applicant claims materially contributed to the veteran's death. In Repatriation Commission v Keeley (2000) 98 FCR 108, Lee and Cooper JJ held, at 123, that in the absence of a contrary intention clearly disclosed, a person whose claim has been determined by the Repatriation Commission under the Act has an accrued right to have his or her claim assessed in accordance with the Statement of Principles in force at the date of the determination of the claim. Mrs Benham's claim was determined by the Repatriation Commission on 15 January 1996 and the Statements of Principles in force at that date are:
·instrument number 85 of 1995 as amended by instrument number 360 of 1995 for ischaemic heart disease;
·instrument number 83 of 1995 for hypertension; and
·instrument number 5 of 1994 for psychoactive substance abuse or dependence.
Instrument number 85 of 1995 provides, as relevant:
"1. Being of the view that there is sound medical-scientific evidence that indicates that ischaemic heart disease and death from ischaemic heart disease can be related to operational service rendered by veterans…the Repatriation Medical Authority hereby determines…that the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting ischaemic heart disease or death from ischaemic heart disease with the circumstances of that service are:
(a)the presence of hypertension before the clinical onset of ischaemic heart disease; or
…
(m)the presence of hypertension which developed before the clinical worsening of ischaemic heart disease; or
…"
Instrument number 83 of 1995 provides, as relevant:
"1. Being of the view that there is sound medical-scientific evidence that indicates that hypertension and death from hypertension can be related to operational service rendered by veterans…the Repatriation Medical Authority hereby determines…that the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting hypertension or death from hypertension with the circumstances of service, are:
(a)suffering from persistent obesity before and continuing at least until the accurate determination of hypertension; or
(b)suffering from psychoactive substance abuse involving daily consumption of alcohol before and continuing at least until the accurate determination of hypertension; or
…
(w)suffering from psychoactive substance abuse involving daily consumption of alcohol that commenced before and continued at least until the clinical worsening of hypertension; or
…
4. For the purposes of this Statement of Principles:"accurate determination of hypertension" generally means the accurate measurement of blood pressure on a number of occasions…
…"
Instrument number 5 of 1994 provides, as relevant:
"1. Being of the view that there is sound medical-scientific evidence that indicates that psychoactive substance abuse or dependence and death from psychoactive substance abuse or dependence can be related to operational service rendered by veterans…the Repatriation Medical Authority determines…that the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting psychoactive substance abuse or dependence or death from psychoactive substance abuse or dependence with the circumstances of that service, are:
(a)experiencing a stressful event prior to the clinical onset of psychoactive substance abuse or dependence, and maintaining the abuse or dependence post-service; or
(b)having a psychiatric condition prior to the clinical onset of psychoactive substance abuse or dependence; or
…
4. For the purposes of this Statement of Principles:
…
"psychoactive substance abuse or dependence" means a maladaptive pattern of use attracting ICD code 303 or 304, that is indicated by either:
(a) continued use of the substance despite knowledge of having a persistent or recurrent social, occupational, psychological or physical problem that is caused or exacerbated by the use of the substance; or
(b)recurrent use of the substance when use is physically hazardous (for example, driving when intoxicated);
"stressful event" means an incident in which there were external stimuli (such as combat) that would result in psychological stress, and where there were subjective symptoms of increased stress.
…"
An alternative argument concerning the effect of the decision in Keeley (supra) is that the current Statement of Principles applies and that an earlier Statement of Principles is applicable only in as far as it is more beneficial than the current instrument. If this argument is adopted, the applicable Statements of Principle in this matter are:
·instrument number 38 of 1999 for ischaemic heart disease;
·instrument number 25 of 1999 for hypertension; and
·instrument number 76 of 1998 for psychoactive substance abuse or dependence and alcohol dependence or alcohol abuse.
Instrument number 38 of 1999 provides, as relevant:
"Kind of injury, disease or death
2. …
(b) For the purposes of this Statement of Principles,"alcohol dependence" means the presence of a constellation of cognitive, behavioural and physiological symptoms indicating the use of alcohol despite significant alcohol-related problems. The pattern of repeated self-administration may result in tolerance, withdrawal and compulsive alcohol use behaviour.
The diagnostic criteria for alcohol dependence are those specified in DSM-IV, and are as follows:A maladaptive pattern of alcohol use, leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same 12-month period:
(1) tolerance, as defined by either of the following:
(a)a need for markedly increased amounts of alcohol to achieve intoxication or desired effect
(b)markedly diminished effect with continued use of the same amount of alcohol
(2) withdrawal, as manifested by either of the following:
(a)the characteristic withdrawal syndrome for alcohol
(b)the same (or closely related) substance is taken to relieve or avoid withdrawal symptoms
(3) alcohol is often taken in larger amounts or over a longer period than was intended
(4) there is a persistent desire or unsuccessful efforts to cut down or control alcohol use
(5) a great deal of time is spent in activities necessary to obtain alcohol, use alcohol or recover from its effects
(6) important social, occupational or recreational activities are given up or reduced because of alcohol use
(7) alcohol use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by alcohol;
"alcohol abuse" means the persence of cognitive, behavioural or physiological symptoms indicating the use of alcohol despite significant alcohol-related problems, however these symptoms have never met the criteria for alcohol dependence. Additionally, signs of tolerance or withdrawal are absent.
The diagnostic criteria for alcohol abuse are those specified in DSM-IV, and are as followsA.A maladaptive pattern of alcohol use leading to clinically significant impairment or distress, as manifested by one (or more) of the following, occurring within a 12-month period:
(1)recurrent alcohol use resulting in failure to fulfil major role obligations at work, school or home
(2)recurrent alcohol use in situations in which it is physically hazardous
(3)recurrent alcohol-related legal problems
(4)continued alcohol use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of alcohol
B. The symptoms have never met the criteria for alcohol dependence.
…
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting ischaemic heart disease or death from ischaemic heart disease with the circumstances of a person's relevant service are:
(a)the presence of hypertension before the clinical onset of ischaemic heart disease; or
…
(r)the presence of hypertension which developed before the clinical worsening or ischaemic heart disease; or
…
8. For the purposes of this Statement of Principles:"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;
…"
Instrument number 25 of 1999 provides, as relevant:
"Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting hypertension or death from hypertension with the circumstances of a person's relevant service are:
…
(b)suffering from alcohol dependence or alcohol abuse, involving consumption of an average of at least 200 grams per week of alcohol (contained within alcoholic drinks) at the time of the accurate determination of hypertension; or
…"
Instrument number 76 of 1998 provides, as relevant:
"Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person's relevant service are:
(a)suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or
…"
FACTUAL BACKGROUND
During the veteran's service he was in two air crashes. In his discharge medical summary (T3, folio 11) mention is made of him suffering shock due to an aircraft crash in about May 1941. He noted a persisting nervous complaint. A medical officer in March 1946 diagnosed (T3, folio 15) that Mr Benham had a mild anxiety neurosis. A specialist diagnosed "anxiety grave" on 23 March 1946 and said it would be a negligible disability in regard to civil employment (T3, folio 16). The specialist said he was permanently unfit for duty. A medical board concluded (T3, folio 17) on 2 May 1946 that Mr Benham was 10 per cent temporarily incapacitated in the general labour market and that he had a negligible permanent incapacity. He was granted a Disability Pension at a 10 per cent rate. This was continued when reviewed in 1947 and later (T4).
Mr Benham had subsequent heart problems. A discharge summary from Royal North Shore Hospital, Sydney, dated 17 August 1984 (T5) recorded that he had experienced angina and that he had raised blood pressure. He had a three vein coronary artery bypass operation on 21 June 1984. He recovered well.
A report by Dr R B M Ravich, physician, dated 28 May 1987 (T6) states that Mr Benham had presented in April 1987 with left chest pains. Dr Ravich noted that he did not smoke and that he drank alcohol only occasionally. His blood pressure was 160/80 and his pulse rate was 76 per minute. Dr Ravich thought Mr Benham had chronic lymphatic leukemia or a small cell lymphoma. He had ordered investigations.
On 1 July 1987 the veteran lodged a claim for a Disability Pension on the basis of chronic lymphatic leukemia (T7, T8). In the claim form he said he had never been a regular drinker; that he began to drink in 1939; that he had an occasional drink in 1987; and that he had not changed his drinking habits greatly at any time. He denied ever smoking. He suggested connections between his war service and his leukemia in the way of exposure to radar and petrol and aircraft fumes.
There is considerable material in the Section 37 statement and documents (Exhibit TD1) relevant to the Respondent's assessment of Mr Benham's claim. This material includes haematology results dated 4 July 1986, 29 April 1987, 28 May 1987, 29 June 1987 and 1 July 1987 (T11, folios 49-52, 57, 58, 64, 65). There is a report from Dr Ravich dated 29 June 1987 (T11, folio 54) in which chronic lymphatic leukemia is the confirmed diagnosis, although in a later report (T12, folio 66, 18 August 1987) he says that a preferable diagnosis is probably small cell lymphoma. Dr Ravich provided another report together with results of investigations which adds little to the above material and which appears at T12, folios 67-71 (29 June 1987). At T14 is a determination dated 7 December 1987 rejecting Mr Benham's claim. Mr Benham's small cell lymphoma was determined not to be a war-caused disease or injury under s 9 of the Act.
At T15 is a report by Dr Ravich dated 14 June 1988 in which he states that Mr Benham's small cell lymphoma/chronic lymphatic leukemia remains static and that his ischaemic heart pain has improved considerably.
At T16 is a Royal North Shore Hospital discharge report dated 16 May 1990 resulting from hospitalisation for unstable angina.
At T17 there is a report on procedures undergone by Mr Benham for skin cancer in 1994.
At T18 is a claim by Mr Benham for an increase in his Disability Pension which was still being paid at a rate of 10 per cent of the general rate. This was lodged on 9 August 1995. The conditions cited were chronic lymphatic leukemia, heart disease (angina) and anxiety state. Attached were a number of supporting documents. These included a report dated 27 April 1993 by Dr G L Donnelly, cardiologist, relating to his angina; a report dated 5 March 1993 by Dr D E Lind, physician, relating to his worsening leukemia; a hospital discharge summary dated 17 July 1995 relating to Mr Benham's leukemia; an ultrasound result dated 5 July 1993 showing an enlarged spleen and aneurysmal dilation of the aorta and a statement by or for Mr Benham about his anxiety state.
T19 is yet another claim by Mr Benham for a Disability Pension lodged at the same time as T18 and referring to conditions of ischaemic heart disease (IHD), chronic lymphatic leukemia and abdominal aortic aneurism. It showed also that Mr Benham had worked continuously from 1946 to 1975.
At T20 is a file note from the Respondent dated 9 October 1995. It records that Mrs Benham, the Applicant, Mr Benham having died on 11 August 1995, came to the Department of Veterans' Affairs and confirmed that the veteran had never smoked. The writer also records: "She also told me that he was a very light drinker, though he did have hypertension. She believes that the veteran's stress (he has an AD of anxiety state) may have caused his I.H.D…"
T21 is documentation of Mr Benham's death. The cause of death in the death certificate is pneumonia (two days), chronic lymphatic leukemia (six years) and IHD (11 years).
T22 consists of forms lodged on 24 October 1995 by Dr D J Unwin, Mr Benham's local doctor, relating to Mr Benham's conditions of anxiety state, solar keratoses, IHD, abdominal aortic aneurism and chronic lymphatic leukemia.
T24 is the Respondent's determination dated 26 October 1995. The Respondent accepted the claim for actinic keratosis, effective from 9 May 1995. The claims in relation to IHD, chronic lymphatic leukemia and aortic atherosclerotic disease were rejected. The rate of pension was raised to 50 per cent of the general rate from 9 May 1995. The Respondent rejected that claim in respect of IHD because there was no satisfaction of the applicable Statement of Principles. The claim in respect of chronic lymphatic leukemia was rejected because, although there was no relevant Statement of Principles, the relevant risk factors included only one affecting Mr Benham. That was increasing age. This was not war-caused. The claim in respect of aortic atherosclerotic disease was rejected because the Statement of Principles was not satisfied.
At T25 there is a claim for a Widow's Pension by the Applicant. Dated 21 September 1995, it was lodged on 13 November 1995. At T27 is a determination by the Respondent dated 15 January 1996 rejecting Mrs Benham's claim on the basis that Mr Benham's death was not causally related to service. The Respondent had considered the condition of chronic lymphoid leukemia, a condition that helped cause Mr Benham's death according to the death certificate. The Respondent did not regard the Statement of Principles as satisfied. The disease and its symptoms did not develop during Mr Benham's service.
T28-T31 consist of testimonial documents. These include the following:
Ms W M P Myers on 6 February 1996 swore a statutory declaration relating to the obvious effects and gradual deterioration in Mr Benham's anxiety condition during and after World War II (T28).
Mr TM Garrett, pensions consultant in Sydney Legacy, on 28 March 1996 wrote to suggest that the veteran may have had war-caused IHD on the basis of his having hypertension while in service (T29).
Mr G S Myers on 1 February 1996 made a declaration setting out his observations relevant to the veteran's nervous disposition (T29).
The Applicant provided a statement dated 7 February 1996. In it she said she first met the deceased late in 1942. They were married in 1944. The content relates in large part to his anxiety condition. It refers also to the veteran's high blood pressure and chest and headache pains in 1951. The veteran refused to approach the Respondent for fear of being seen as a coward. The veteran had nasal and chest infections. Reference is made to the veteran's leukemia and his heart condition. The veteran's heart condition reduced his mobility in the last weeks of his life and contributed to his death (T29).
T30 contains communication dated 7 May 1996 from Mr P Studman to Dr Tong querying whether Mr Benham had hypertension during his service. Dr Tong replies in the negative. Mr Benham's blood pressure reading soon after discharge was 135/90.
T31 is a report dated 11 May 1998 by Dr D J Unwin stating that Mr Benham had severely restricted activity after 15 November 1993 because of hypertension and angina due to IHD.
T32 is the decision of the VRB dated 6 August 1998 affirming the Respondent's decision of 15 January 1996 determining that Mr Benham's death was not war-caused under section 8 of the Act. The VRB rejected the argument that Mr Benham's stressful service led to his hypertension and that led to his IHD, a condition noted on the death certificate as present for 11 years. The VRB was not satisfied that the Statement of Principles on hypertension was met because service related blood pressure readings were isolated and only two in number. The earliest onset of hypertension seemed to be 1951. Likewise the applicable Statement of Principles for chronic lymphoid leukemia was not satisfied. Mrs Benham was notified of this decision by letter dated 25 August 1998 (T33). She appealed to the Tribunal on 29 September 1998 (T1).
APPLICANT'S EVIDENCE
The Applicant's representative, Mr Lurie, made the following oral submissions to the Tribunal:
The Respondent has conceded that there is a reasonable hypothesis connecting Mr Benham's death with IHD. The Respondent has also conceded that the conditions of Mr Benham's service were stressful so as to satisfy the definitions of severe stress or stressful events under the Statement of Principles regarding psychoactive substance abuse or dependence.
The deceased veteran began to drink alcohol excessively in service. This led to his hypertension. His alcohol abuse in turn stemmed from Mr Benham's anxiety state which was an accepted condition. The Applicant relies on Statement of Principles Instrument No 83 of 1995 concerning hypertension ('SOP 83/95") issued on 8 March 1995. Clause 1(b) of SOP 83/95 recognises that a reasonable hypothesis connecting hypertension or death from hypertension with the circumstances of service exist where a veteran has suffered from psychoactive substance abuse involving daily consumption of alcohol before and continuing at least until the accurate determination of hypertension.
The Applicant may be able to take advantage of a later Statement of Principles, Instrument No 64 of 1998 concerning hypertension ("SOP 64/98"). The Applicant would rely on clause 5(b) whereby a reasonable hypothesis connecting service with hypertension may exist where a veteran has suffered from alcohol dependence or alcohol abuse involving consumption of an average of at least 200 grams per week of alcohol (contained within alcoholic drinks), at the time of the accurate determination of hypertension.
The Applicant contends that the veteran suffered a clinical worsening of hypertension at various times after his service, notably in 1951 when he commenced anti-hypertensive medication and in 1984 when he was admitted for triple bypass surgery. This brings into play clause 1(w) of SOP 83/95 or clause 5(o) of SOP 64/98. Each of these requires the consumption of alcohol before and at the time of a clinical worsening of hypertension. The quantities and frequency of alcohol consumption differ as between them. SOP 83/95 would appear easier to satisfy.
The Applicant argues that the veteran's drinking pattern worsened after service and that his anxiety state also worsened causing him to drink more alcohol.
The Applicant argues that a veteran or a widow, as in this case, may, in accordance with the decision of the Federal Court of Australia in Repatriation Commission v Keeley (2000) 98 FCR 108 attempt to take advantage of a Statement of Principles as in force at the time of the making of the making of the primary decision, here 15 January 1996. However, where that Statement of Principles is subsequently amended and becomes easier to satisfy, the Applicant argues that a veteran or widow can succeed in his or her claim if he or she satisfies the amended requirements. This is said to follow from the reasoning by Lee and Cooper JJ in paragraph 46 of their joint judgment in the Keeley case (supra).
Exhibits A2 and A4 are statements by the Applicant dated 29 November 1999 and 9 May 2000 respectively. In them she made the following relevant points:
Comments in the documents forming Exhibit TD1 to the effect that Mr Benham was never a regular drinker, was a very light drinker or rarely drank alcohol are not true except to the extent that he drank less alcohol as his health deteriorated.
Mr Benham did not drink alcohol at all before he left Australia in 1939 for active service in Britain.
He told Mrs Benham he had his first drink anchored at Gibraltar after flying from Malta.
When the Applicant first met Mr Benham in 1942 he was drinking regularly. He drank regularly at the mess at night and he drank at mess dances attended by Mrs Benham. When he and Mrs Benham visited friends he would often be keen to ensure that they were going to serve him drinks. Often he over-drank on these visits.
Mr Benham told Mrs Benham that in Britain he would return freezing cold after a 15 to 17 hour patrol and drink rum and warm milk in the mess.
Mr Benham lived through many traumatic experiences in Britain, eg many hours of operational flights, two plane crashes in which some people were killed and the bombing of Plymouth.
Mrs Benham married the veteran in 1944. He was drinking four to six tall glasses of beer a day. He came home each day with beer from the mess. He often drank at home until late at night with American or Dutch air crew members who were heavy drinkers. He was often too tired to walk with Mrs Benham to her parents' house.
Mr Benham said he often felt under stress at the time and would have an extra drink if under stress.
After the war Mr Benham often drank at least two strong whiskies in addition to his beer. In winter he drank warm milk and rum before bed, a custom he acquired in Britain on service. He would have an extra drink if upset. Mr Benham's drinking became worse after they moved into a new house on New Year's Eve, 1950. His anxiety condition was especially bad at the time. He would take headache tablets immediately he arrived home.
Mr Benham had nightmares and would have whisky when he awoke to help settle down. He had many nightmares from the end of the war until the late 1960s when he had a nasal operation. After a nightmare Mr Benham would be in terror and sometimes sobbing.
At times Mr Benham would be repentant about his drinking and said he would watch his alcohol consumption. He consumed alcohol to blot out memories of the war. About twice a week for some time Mrs Benham tried to convince him to drink less to the extent that they had "fights" about it. He was angry when the subject was broached.
Mrs Benham had little luck in convincing Mr Benham to approach the Department of Veterans' Affairs for help or to approach his doctor. He was concerned he would be seen as a coward.
To eliminate some stress from Mr Benham's life Mrs Benham took over the family finances in the 1950s.
Mr Benham did not buy alcohol locally. He went to neighbouring suburbs. He asked Mrs Benham to buy him alcohol when she went shopping.
Mr Benham occasionally stayed home when Mrs Benham was going to the theatre because he had been drinking. He was supposed to be home by 7.00 pm to baby sit but would often be too late so that Mrs Benham had to ask a neighbour to help out at short notice.
Mr Benham drank far too much on Christmas Day 1958 and could not remain throughout Christmas dinner.
Mr Benham often drank after work with a friend at the friend's house during his working years. He did this from about 1955/56 until 1972 most week nights and stayed two or three hours. He then drove himself home. He would come home belligerent and out of character. He did not want to have to say where he had been. When certain friends moved to Queensland Mr Benham would drink two large bottles of beer at home after work. He would sometimes meet others at an RSL club and have a drink there before coming home. This occurred almost every Friday night.
He often was invited to the homes of clients and drank with them.
Mr Benham always drank to excess on Anzac Day until 1987.
On a New Year's Day in the 1960s the Applicant refused to let the veteran drive her home from the Avondale Golf Links because of his intoxicated condition.
Mr Benham drank and drove but avoided police trouble.
Mr Benham was prone to irritability which would disappear if he drank.
Mr Benham reduced his beer intake after he was diagnosed in 1987 with leukemia. His chemotherapy treatment and drugs for angina and hypertension made him feel sick if he drank beer at the same time. He would have just a whisky before dinner.
In the period around 1952-1953 Mr Benham had his blood pressure checked every week by Dr Morris because it was "dangerously high".
Both Mr and Mrs Benham tried to keep his drinking a secret. Mrs Benham thinks he was ashamed of the amount he drank. This was also why he did not buy alcohol locally.
Mr Benham took alcohol in larger amounts over longer periods than intended because of his tension and anxiety.
After Mr Benham retired he often sat outside for hours writing about his war experiences. Mrs Benham thinks this was a way for him to relieve tension.
Mr Benham was limited in his ability to drink at home after the war until the Benhams acquired their own home. When they shared a house with another woman before acquiring their own home Mr Benham could not drink to excess at home.
Mr Benham would prefer to stay at home and drink rather than go with Mrs Benham to see her parents.
Mr Benham was often drained at work because he could not sleep and he consumed excessive alcohol. He missed business calls after hours when he was out drinking and would not return calls when he arrived home.
He would drink as a result of not being able to sleep or if something went wrong with his business.
Mr Benham would become irritable and not his good-natured self if he had not had a drink.
After Mr Benham retired, he would insist that Mrs Benham have a drink with him and he would have a drink and snack ready for her at 5.00 pm.
In the Applicant's oral evidence much of the above material was repeated. New material was as follows:
When Mr and Mrs Benham had visited friends in 1944 who had served alcohol to Mr Benham he was able to walk, rather than drive, home afterwards. These visits would usually be of a Saturday night. There was no socialising to speak of on other nights because of early morning rises. At this time Mr Benham did not really drink and drive. They walked most places. Mr Benham sometimes drove to sheep stations 20 miles away. He would leave early and be sober. However, he would often drive home drunk.
Eight bottles of wine had been procured for Mr and Mrs Benham's wedding, however by the time they were required only two bottles were left. Mr Benham and his friends had consumed six.
Evidence was forthcoming that Mr Benham had peptic ulcers. He had these from the 1940s and they were detected by doctors at the Royal North Shore Hospital in 1984. They are referred to in Exhibit A7, the veteran's handwritten notes with no date.
In cross-examination by Ms Doggett the following information emerged:
Mr and Mrs Benham married on 5 April 1944 and had their first child in 1947.
The Applicant was unaware of whether her husband was being treated for any condition when they met in 1942. At the time of the marriage in 1944 Mr Benham was not under treatment. He self-administered medication for headaches and nasal congestion.
Mr Benham was first treated for hypertension in the early 1950s. He was alarmed when he had chest pains. He saw his doctor who found he had high blood pressure. He was given tablets. Mr Benham had not earlier mentioned he had high blood pressure.
Mrs Benham disagreed with Dr Ravich's comment at T6, folio 28, where he wrote that Mr Benham drank alcohol only occasionally. She insisted that Mr Benham drank every day until diagnosed with leukemia. She said he hid his drinking well. He drank only with the family and in private. He was ashamed that he drank too much.
Mr Benham was also ashamed of his anxiety condition and kept that secret.
Mrs Benham said that the material in T8 about her husband's drinking history and habits was wrong. These answers by Mr Benham are described above in paragraph 20. Mrs Benham ascribed the incorrect answers to Mr Benham feeling ashamed, or to it perhaps being a period when he was on chemotherapy and drinking less.
Mrs Benham could not explain why the medical summary in T9, folio 36, states that in 1987 Mr Benham was drinking rarely.
Ms Doggett referred also to T18, folio 93, which is in Mrs Benham's hand but was dictated by her husband just before he died. This was a list of medical conditions he attributed to his war service. He does not mention alcohol problems.
Ms Doggett referred to T20, a departmental file note, in which Mrs Benham is quoted in 1995 as describing Mr Benham as a very light drinker. Mrs Benham said that she was upset at the time. She was used to covering up for Mr Benham. She would not let him down.
Ms Doggett referred to the statutory declaration by Ms Myers at T28. This referred to social activities she did with Mr and Mrs Benham but she makes no reference to Mr Benham drinking. Mrs Benham said the visits involving Ms Myers were quick visits where there was no excessive drinking.
Ms Doggett referred to the declaration by Mr Myers at T29. Again, Mr Myers does not refer to alcohol abuse. Mrs Benham said Mr Myers was very young at the time and would not have known.
Ms Doggett referred to the Applicant's own statement at T29, folios 129-130 in which, again, there is no mention of alcohol abuse on Mr Benham's part. Mrs Benham said she was inclined to let sleeping dogs lie at that time. They kept the problem between themselves and covered it up effectively.
Ms Doggett referred to Exhibit R4, a hospital record from 5 August 1955. In an interview between Dr Lawrence, a psychiatrist, and Mr Benham the veteran spoke openly about his emotions and anxiety. The fact that Mr Benham so revealed his symptoms surprised the Applicant. Mr Benham said he took sedatives to help him sleep when he had sleep upsets. Mrs Benham could not recall any sedatives. Dr Lawrence recorded that Mr Benham only took a beer at long intervals. Mrs Benham thought Mr Benham may have said this because of shame and because he saw it as his own personal business.
Mr Benham became better natured with drink. He did not become violent.
Mr Benham would become physically sick from drink about every two months in the mid-1940s.
Mrs Benham considered that Mr Benham's alcohol consumption rose in the 1950s when they acquired their own home. It increased to the 1960s and stayed at that level in the 1970s.
The Applicant admitted that she "wouldn't have a clue what happened in England during the war". She said she did not know Mr Benham until he returned.
Mrs Benham did not know how much rum Mr Benham had with his warm milk after returning from flying when in England.
Between 1942 and the end of the war when Mr and Mrs Benham both attended social functions these occurred on weekends and only if Mr Benham was off duty. On these occasions Mr Benham drank as much as everybody else. Mrs Benham said that Mr Benham never drank on duty or when he might be called out to duty.
Mrs Benham gave evidence that her husband continued to drive while intoxicated after he left service.
EVIDENCE OF DR M G MILLER
Dr M G Miller, physician, provided the report that is Exhibit A1. It is dated 16 September 1999. In it Dr Miller makes the following relevant points:
Mr Benham's blood pressure readings show that he was mildly elevated at 135/90 on 25 March 1946. His blood pressure was further elevated at 170/100 on 14 July 1947. It was normal at 130/70 on 25 June 1948. He was said to be hypertensive on 14 August 1953 (140/100) and on 21 November 1956. Mrs Benham recalls that he was treated for hypertension from 1952 until he died.
He had a history from Mrs Benham as to Mr Benham's alcohol consumption that was different from Mr Benham's account at T8 where he says he drinks occasionally.
Mr Benham's IHD was diagnosed in 1984 and he had bypass surgery. He later had further heart problems, especially deteriorating angina.
As regards the relationship between Mr Benham's death and war service there is a reasonable hypothesis that there was a connection between Mr Benham's IHD and his death. Dr Miller disagrees with Dr Richards (Exhibit R3) on this point.
As regards the relationship between Mr Benham's IHD and his war service Dr Miller considers that Mr Benham's condition satisfies Statement Of Principles Instrument No 38 of 1999, clause 5(a) in that there was the presence of hypertension before the clinical onset of IHD.
As regards the relationship between hypertension and war service Dr Miller considers that Mr Benham drank consistently and regularly to an amount of more than 200 grams of alcohol per week. He was drinking between 65 and 105 grams of alcohol a day in 1952. This would satisfy clause 5(b) of Statement of Principles Instrument No 25 of 1995.
As regards the relationship between alcohol consumption and war service there was alcohol abuse in that there was recurrent alcohol use by Mr Benham in situations that were physically hazardous. He drove his car when he consumed too much alcohol. He continued alcohol use despite recurrent interpersonal problems associated with it. He satisfied clause 5(a) in that he was suffering from an accepted disability of anxiety disorder at the time of his clinical onset of alcohol abuse. He also satisfied clause 5(b) in that he suffered the severe stressors of aeroplane crashes in 1941 and prolonged convoy escort and anti-submarine patrols. Mrs Benham said Mr Benham started drinking heavily in 1942 with his crew. There is a reasonable hypothesis that his alcohol abuse relates to his war service. Thus his hypertension and subsequent IHD relate to war service and his death was contributed to by his war service.
In his oral evidence the following additional relevant points were made:
Patients are not usually open about their alcohol histories in discussing alcohol consumption with their doctors.
Mr Benham would have been consuming 90 to 120 grams of alcohol a day in 1942. In 1946 he was consuming 65 to 105 grams of alcohol a day.
Exhibit R4 includes a reference to Mr Benham in 1955 having difficulty remembering names and recent events. Dr Miller considers that this cognitive loss would more probably than not be attributable to Mr Benham's level of alcohol consumption.
Dr Miller considers that Mr Benham met the requirements of Statement of Principles Instrument No 76 of 1998 concerning alcohol dependence or alcohol abuse. He would initially have suffered from alcohol abuse and then from alcohol dependence. Dr Miller considers that he would also satisfy Statement of Principles Instrument No 5 of 1994 concerning psychoactive substance abuse or dependence on the basis that he had a psychiatric condition, ie the anxiety problem, prior to the clinical onset of psychoactive substance abuse or dependence.
Dr Miller considers that Mr Benham had labile hypertension from 1946. It would have become fixed later. This is usual with hypertension linked to alcohol abuse. Using SOP 83/95 concerning hypertension Dr Miler considers that there was an accurate determination of Mr Benham's hypertension from 25 March 1946, the date of an abnormally high blood pressure reading. After this date and up to 1956 there is a record of only one normal blood pressure reading. Dr Miller considers that there was a clinical worsening of Mr Benham's hypertension in the 1960s and in 1984.
Dr Miller gave evidence that Mr Benham's alcohol consumption during the war would have meant that he attended work on some mornings under the influence of alcohol after drinking sessions the previous night. This would be a failure to fulfil a major obligation at work.
Dr Miller considered that it would have taken Mr Benham 15 hours to recover from a heavy night of drinking.
In cross-examination by Ms Doggett the following relevant points emerged:
Dr Miller considers that there was also a clinical worsening of Mr Benham's hypertension in 1953.
Dr Miller's assessment that there was a clinical worsening of Mr Benham's hypertension in 1984, on the basis of one high blood pressure reading, was challenged by Ms Doggett on the bases that there are subsequent readings showing reduced blood pressure and that the Statement of Principles requires repeated readings in order that hypertension can be accurately determined.
Dr Miller gave evidence that in assessing the veteran's likely history of alcohol consumption he preferred to accept the evidence of the Applicant and largely discount the conflicting documentary evidence in the Exhibit TD1 which was put to the Applicant in cross-examination. This is based on Dr Miller's confidence that he can discern a credible history and on the individual's propensity to understate his or her alcohol consumption when completing forms or seeing doctors. This was notably his reason for not giving weight to the comments recorded by Dr Lawrence in 1955 in Exhibit R4 covered in Ms Doggett's cross-examination of Mrs Benham.
Dr Miller was shown T11, folio 60, a record of a set of liver function tests done in May 1987. Mr Benham then had a triglycerides reading of 1.99 mmol/l. Dr Miller said that at this stage Mr Benham was not drinking heavily because of those readings.
Dr Miller conceded that he has no evidence of excessive alcohol consumption by Mr Benham other than the account given by Mrs Benham.
ADDITIONAL MEDICAL EVIDENCE
DR D RICHARDS
Dr Richards, a cardiologist, provided a report dated 19 July 1999 at the request of the Respondent (Exhibit R3). He reported that he agreed that Mr Benham suffered from IHD but he did not consider that IHD contributed to Mr Benham's death. He considered that the IHD had its clinical onset in 1984. He did not consider that Mr Benham satisfied any of the criteria in the Statements of Principles concerning hypertension. The blood pressure reading of 135/90 taken in 1946 would not have been considered abnormal and would not have demanded treatment. Dr Richards wrote:
"Although Mr. Benham had ischaemic heart disease, it is my opinion that it did not contribute to his terminal illness or death. If ischaemic heart disease had contributed to his terminal illness, then I would have expected that he would have required treatment with sublingual nitrates for angina pectoris, and that he would have developed evidence of cardiac failure or arrhythmias prior to death. This was not the case. It is my opinion that his death at 82 years of age was not hastened by the presence of ischaemic heart disease."
It should be noted that Dr Miller in his report (Exhibit A1) recorded that the Applicant reported that the veteran was consuming large amounts of sublingual nitrates and had evidence of swollen ankles and orthopnoea prior to his death. He thought there was a reasonable hypothesis that these were features of congestive heart failure.
MEDICAL RECORDS FROM NERINGAH HOSPITAL RELATING TO MR BENHAM
These were received as Exhibit R2 by the Tribunal. They relate to a period from June 1995 when Mr Benham was admitted to the hospital for palliative care for about a month and to a second admission on 9 August 1995 just prior to his death on 11 August 1995. The Respondent's representative conceded that these documents provide evidence that IHD was a contributing cause of death in Mr Benham's case.
EVIDENCE OF LAY WITNESSES
The only evidence before the Tribunal from lay sources not earlier mentioned was the following material.
Exhibit A6 consisted of pages 152-153 from the book, Maritime is Number Ten, The Sunderland Era (1983) by Flight Lieutenant K C Baff. This material describes one of the aircraft accidents involving a craft on which the deceased veteran served in Britain.
Exhibit A7 was a page of Mr Benham's handwriting dealing with conditions he felt justified an apparent claim he had made at some stage for a Disability Pension.
Exhibit A8 was two pages of Mr Benham's handwriting dealing with conditions he felt justified an apparent claim he had made at some stage for a disability pension.
APPLICANT'S CLOSING SUBMISSIONS
Mr Lurie for the Applicant made the following closing submissions:
There is a reasonable hypothesis that IHD was a material cause of Mr Benham's death.
Mr Benham's service was stressful so as to satisfy the definition of experiencing a "stressful event" or "severe stressor" within Statement of Principles Instrument No 5 of 1994 (psychoactive substance abuse or dependence) or Instrument No 76 of 1998 (alcohol dependence or abuse).
The clinical onset of Mr Benham's anxiety state, an accepted disability, was on service.
Mr Benham's blood pressure readings had been high since 1952.
The date of clinical onset of Mr Benham's IHD was 1982 when he was treated for angina. Dr Miller stated that there was a clinical worsening of the IHD in the last year of Mr Benham's life.
The issues for determination by the Tribunal are:
When was the first accurate determination of hypertension?
Was Mr Benham abusing or dependent on alcohol at the time of the first accurate determination of hypertension?
Did Mr Benham suffer a clinical worsening of hypertension at any time after the first accurate determination of hypertension?
If the answer to 3 is "yes", was Mr Benham abusing or dependent on alcohol at the time of the clinical worsening of hypertension?
If the answer to 4 is "yes", was the clinical worsening of hypertension before the clinical onset of IHD or the clinical worsening of IHD?
The Applicant says that Mr Benham began to abuse alcohol or became alcohol dependent on service and that this contributed to the development of hypertension as recorded in his medical examination prior to discharge. Clause 1(a) (experiencing a stressful event) and clause 1(b) (suffering from a psychiatric condition) of Statement of Principles Instrument No 5 of 1994 (psychoactive substance abuse or dependence) and clause 5(a) (suffering from a psychiatric disorder) and clause 5(b) (experiencing a severe stressor) of Statement of Principles Instrument No 76 of 1998 (alcohol dependence or alcohol abuse) are satisfied. The psychiatric condition or disorder was Mr Benham's anxiety state.
The Applicant contends that the first accurate determination of hypertension was on 19 March 1946 (T3, folio 12). The reading was 135/90.
The Applicant argues that there was a causal connection between hypertension and war service. Clause 1(b) of SOP 83/95 (suffering from psychoactive substance abuse or dependence) and clause 5(b) of Statement of Principles Instrument No 25 of 1999 (suffering from alcohol dependence or alcohol abuse) are satisfied.
The Applicant argues that Mr Benham continued to abuse or depend on alcohol after service and that this continued until the clinical worsening of hypertension. The Applicant argues that Mr Benham's hypertension clinically worsened in 1951 and later including about 1982 or 1984. The Applicant contends that the clinical onset and/or clinical worsening of Mr Benham's IHD were causally related to Mr Benham's war-caused hypertension and that clauses 1(a) and (m) of Statement of Principles Instrument No 85 of 1995 and clauses 5(a) and (r) on Statement of Principles Instrument No 38 of 1999 are satisfied.
The Applicant contends that the effect of the decision in Repatriation Commission v Keeley (2000) 98 FCR 108 is that the current Statement of Principles applies and an earlier Statement of Principles is applicable only in as far as it is more beneficial than the current instrument.
RESPONDENT'S CLOSING SUBMISSIONS
Ms Doggett made the following submissions on behalf of the Respondent:
The applicable standard of proof for considering whether the death of Mr Benham was war-caused is that of the reasonable hypothesis.
The Statements of Principles to be applied are those in force at the date of the Commission's original decision, 15 January 1996. These were SOP 85/95 as amended by Instrument No 360 of 1995 (IHD); SOP 83/95 (hypertension) and Statement of Principles Instrument No 5 of 1994 (psychoactive substance abuse or dependence).
In considering whether Mr Benham' death was war-caused the Respondent proceeded as follows:
Mr Benham's death was materially contributed to by his IHD. This is shown in the final illness notes provided by Neringah Hospital (Exhibit R2). Mr Benham's IHD had its clinical onset in 1982 when he was prescribed medication for angina (T31). Clause 1(a) of SOP 85/95 is satisfied in that hypertension was present before the clinical onset of IHD.
On the balance of probabilities the accurate determination of Mr Benham's hypertension was in 1951 when he first received medication for hypertension. Previously he had one borderline and one normal blood pressure reading. This satisfies the definition of "accurate determination of hypertension" in SOP 83/95. The Applicant is relying on satisfaction of clause 1(b) of SOP 83/95, that Mr Benham suffered "from psychoactive substance abuse involving daily consumption of alcohol before and continuing at least until the accurate determination of hypertension". The only period of Mr Benham's alcohol consumption of relevance is therefore that up to 1951.
On the question of Mr Benham's psychoactive substance abuse or dependence the Respondent relied on Statement of Principles Instrument No 5 of 1994. The Respondent refers to aspects of the Applicant's evidence:
The Applicant admitted in cross-examination that she "wouldn't have a clue what happened in England during the war". She said she did not know Mr Benham until he returned.
The Applicant admitted in cross-examination that she did not know how much rum Mr Benham had with his warm milk after returning from flying when in England.
Between 1942 and the end of the war when Mr and Mrs Benham both attended social functions these occurred on weekends and only if Mr Benham was off duty. On these occasions Mr Benham drank as much as everybody else. Mrs Benham said that Mr Benham never drank on duty or when he might be called out to duty.
Mr Benham was limited in his ability to drink at home after the war until the Benhams acquired their own home. When they shared a house with another woman before acquiring their own home Mr Benham could not drink to excess at home.
In the Respondent's view there is no material to suggest that there was any psychoactive substance abuse in this period. Mr Benham's alcohol consumption was part of his social activities. It was consistent with social norms of the period. There is no evidence to suggest daily consumption of alcohol or that he continued to use alcohol despite knowledge of social, occupational, psychological or physical problems. Rather he was careful not to consume alcohol if he thought it would affect his performance at work.
Mr Benham's own evidence in Exhibit TD1 suggests that he was not consuming alcohol in a manner such as the Statement of Principles requires. At T8 in 1987 he said he was not a regular drinker; that he began drinking in 1939; that he still had an occasional drink; that he had no applicable daily consumption and that his drinking habits had not changed over time. At T9 in 1987 a departmental medical practitioner recorded that Mr Benham had alcohol rarely. At T18, folio 93, Mr Benham details the problems he had as a result of his aeroplane crashes. He does not mention alcohol problems.
Even the Applicant herself at T20 is recorded in 1995 as saying that Mr Benham was a very light drinker. Further, at T29, folio 130, the Applicant describes in 1996 the symptoms of Mr Benham's anxiety state which she had observed. There is no mention of alcohol problems.
The Respondent argued that this documentary evidence should be given appropriate weight. The Applicant attempted to explain it away by saying that Mr Benham was ashamed of his alcohol consumption and thought it may be damaging to his claim. The Respondent countered by saying that the Applicant now has a strong incentive to give evidence that she believes may be helpful to her claim.
The Respondent argued strongly that the record of interview between Dr Lawrence and Mr Benham dated 5 August 1955 (Exhibit R4) should be given considerable weight. In this interview Mr Benham was extremely candid regarding his emotional problems. He was clearly very upset and made no attempt to hide his emotional state. He told Dr Lawrence he was a non-smoker and only liked a beer at long intervals. The Respondent argued that this is the best evidence from Mr Benham. His own evidence as to his alcohol consumption should be preferred to the applicant's evidence because it is not second-hand and he had no reason to exaggerate or minimise his consumption. It is also contemporaneous evidence not subject to the vagaries of time. It is not plausible that Mr Benham, having been so honest with Dr Lawrence on other highly sensitive matters, would deliberately hide his alcohol consumption. He wept freely and trembled during the interview.
The Respondent therefore submitted that there is no evidence to point the Tribunal to the conclusion that Mr Benham was suffering from psychoactive substance abuse prior to the accurate determination of his hypertension in 1951.
The Respondent criticised Dr Miller's cavalier attitude to the documents available to him that disagreed with Mrs Benham's version of events relating to Mr Benham's drinking. He said these documents are often wrong. There was no evidence that the documents before him in this case were in any way incorrect. He also failed to consider that the applicant might not be telling him the truth.
Dr Miller said that he often has the advantage a psychiatrist does not have in that he conducts a physical examination. That was not so in this case as Mr Benham had died. On the other hand Dr Lawrence had the advantage of interviewing Mr Benham personally in 1955, an advantage Dr Miller did not have.
On the basis of its arguments that Mr Benham did not suffer from psychoactive substance abuse at the relevant time, the Respondent concluded by stating that the decision under review should be affirmed.
THE ISSUES
The parties agree that the issues in this application are dictated by the connecting chain of conditions allegedly suffered by Mr Benham that led to his death in 1995. Essentially the argument is that Mr Benham suffered from war-related psychoactive substance abuse or dependence or from alcohol dependence or alcohol abuse which led to Mr Benham developing war-related hypertension. Mr Benham's hypertension then led to Mr Benham's war-related IHD. Mr Benham's IHD contributed to his war-related death in 1995.
The issues then become:
Did Mr Benham suffer from psychoactive substance abuse or dependence, or from alcohol dependence or alcohol abuse when he had a clinical onset or clinical worsening of hypertension in the sense that his conditions fulfil the requirements of the Statements of Principles applicable to the conditions?
If the answer to question 1 is "yes", did Mr Benham's hypertension contribute to the clinical onset or clinical worsening of his condition of IHD in accordance with the relevant Statement of principles?
If the answer to question 2 is "yes", did Mr Benham's IHD contribute as a cause of his death?
If the answer to question 1 is "yes", several legal issues raised by the parties become necessary for resolution. These are:
Which Statements of Principles are applicable? Are they those in force at the date of the primary decision made by the Respondent? Can reference be made to later Statements of Principles relating to the same conditions that may be more beneficial for the Applicant?
Are elements of the relevant Statements of Principles that refer to the clinical worsening of a veteran's condition applicable in the present application?
FINDINGS ON MATERIAL QUESTIONS OF FACT AND CONSIDERATION OF ISSUES
Issue 1 - Did Mr Benham suffer from psychoactive substance abuse or dependence, or from alcohol dependence or alcohol abuse when he had a clinical onset or clinical worsening of hypertension in the sense that his conditions fulfil the requirements of the Statements of Principles applicable to the conditions?
The Applicant considers that the requirements of the most recent Statement of Principles (Instrument No 76 of 1998) are satisfied. The Applicant argues that Mr Benham while in service engaged in "alcohol abuse" as defined in clause 2(b) of that Statement of Principles.
He is said to have satisfied criteria A(1), A(2) and A(4). Criterion A overall requires a maladaptive pattern of alcohol use leading to clinically significant impairment or distress, as manifested by one (or more) of listed signs in A(1)-(4) occurring within a 12-month period.
Criterion A(1) is recurrent alcohol use resulting in a failure to fulfil major role obligations at work, school or home. The Applicant relied on evidence Dr Miller gave that Mr Benham's alcohol consumption during the war would have meant that he attended work on some mornings under the influence of alcohol after drinking sessions the previous night. This would be a failure to fulfil a major obligation at work.
The Applicant also gave evidence that Mr Benham was sometimes too tired to walk with her to her parent's house and would stay at home and drink. This is said to indicate that Mr Benham's alcohol use also resulted in a failure to fulfil an obligation at home, that is to socialise with his in-laws.
Criterion A(2) is recurrent alcohol use in situations in which it is physically hazardous. Mrs Benham's evidence that Mr Benham drove under the infludence of alcohol from as early as soon after 1942 was said to indicate this.
Criterion A(4) is continued alcohol use despite persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of alcohol. The Applicant suggests that her evidence as to the domestic discord caused by the veteran's alcohol consumption satisfies this criterion.
Further, the Applicant contends that Mr Benham became dependent on alcohol on service in accordance with the criteria in the same Statement of Principles. Alcohol dependence in clause 2(b) of Instrument No 76 of 1998 involves a maladaptive pattern of alcohol use, leading to clinically significant impairment or distress, as manifested by three (or more) of a number of listed criteria occurring at any time in the same 12-month period.
Criterion (3) is that alcohol was taken in larger amounts or over a longer period than the drinker had intended. The Applicant suggests that the evidence that Mr Benham drank as a self-medication whenever he was anxious would satisfy this criterion.
Criterion (4) is that there is a persistent desire or unsuccessful efforts to cut down or control alcohol use. The Applicant indicates that her evidence that, although Mr Benham was remorseful and felt guilty after drinking too much, and he promised to watch his consumption, he was unable to do so, satisfies this criterion.
Criterion (5) is that a great deal of time is spent in activities necessary to obtain alcohol, use alcohol or recover from its effects. The Applicant's evidence was that Mr Benham drank every day after work, that he would often drink late into the night with Dutch or American crews, or at social occasions on weekends and that he could be still under the influence of alcohol in the mornings. This was said to satisfy this criterion.
Criterion (6) is that important social, occupational or recreational activities are given up or reduced because of alcohol use. The Applicant argues that her evidence that Mr Benham would prefer to stay at home and drink rather than go with her to see her parents would satisfy this criterion.
The Applicant also argues that Statement of Principles Instrument No 5 of 1994 concerning psychoactive substance abuse or dependence is satisfied, if that is the appropriate Statement of Principles. It is suggested that Mr Benham suffered from alcohol abuse or dependence because Mr Benham had knowledge or persistent or recurrent social or occupational problems caused or exacerbated by alcohol use. This is because of the Applicant's evidence as to the domestic disharmony caused by Mr Benham's drinking, his attendance at work while under the influence and his recurrent pattern of driving while intoxicated.
The Applicant also argues that these criteria apply after Mr Benham's service at times of the clinical worsening of his hypertension. In summary she points to the following evidence in relation to the criteria already mentioned.
In relation to alcohol abuse after service and in accordance with the current Statement of Principles (Instrument No 76 of 1998) the evidence is said to be:
Criterion A(1): Mr Benham was often drained at work because he could not sleep and he consumed excessive alcohol (Exhibit A4). He missed business calls after hours when he was out drinking and would not return calls when he arrived home (Exhibit A2 and Exhibit A4). Mr Benham's inability to sit through one Christmas dinner with his family (Exhibit A2). Mr Benham was too late to baby sit his children on occasions when Mrs Benham went out (Exhibit A4). Mr Benham's short-term memory loss mentioned by Dr Lawrence in Exhibit R4 which Dr Miller would associate with excessive alcohol consumption. Mr Benham would be under the influence of alcohol at work on some mornings.
Criterion A(2): Mrs Benham's evidence that her husband continued to drive while intoxicated after he left service.
Criterion A(4): The Applicant refers again to the domestic conflicts caused by Mr Benham's excessive alcohol consumption. At one stage the Applicant says she threatened to leave her husband when he considered buying a liquor store Exhibit A2).
As regards a diagnosis of alcohol dependence after service in accordance with clause 2(b) of Instrument No 76 of 1998 the Applicant argues that Mr Benham satisfied the criteria. The evidence cited is as follows.
Criterion (1), tolerance as defined by a need for markedly increased amounts of alcohol to achieve intoxication or the desired effect: The Applicant argued that as Mr Benham grew older he needed to drink more alcohol for it to have the same effect on him, that he had less severe hangovers despite heavier drinking, and that he could progressively drink more before it had noticeable physical effects (Exhibits A2 and A4).
Criterion (2), withdrawal symptoms or the taking of the same or similar substance to avoid withdrawal symptoms for alcohol: The Applicant gave evidence that in about 1975 Mr Benham would become irritable and not his good-natured self if he had not had a drink (Exhibit A2).
Criterion (3), alcohol was taken in larger amounts or over a longer period than the drinker had intended: The Applicant said that Mr Benham would drink as a result of not being able to sleep or if something went wrong with his business (Exhibit A2).
Criterion (4), persistent desire or unsuccessful efforts to cut down or control alcohol use: The Applicant said that Mr Benham continued to argue with her after service and to make promises to control his drinking (Exhibit A2).
Criterion (5), a great deal of time is spent in activities necessary to obtain alcohol, use alcohol or recover from its effects: Mrs Benham's evidence was that Mr Benham drank after work most nights of the week with friends or clients, that he went to the RSL club on weekends. He drank excessively on Anzac Day, Christmas and New Year's Eve. After he retired he insisted Mrs Benham have a drink with him and he would have a drink and snack ready for her at 5.00 pm (Exhibits A2 and A4). The Applicant described Mr Benham's liquor buying habits which involved shopping for alcohol in neighbouring suburbs (Exhibit A2). Dr Miller's evidence was that it would have taken Mr Benham 15 hours to recover from a heavy night of drinking.
Criterion (6), important social, occupational or recreational activities are given up or reduced because of alcohol use: The Applicant gave evidence that Mr Benham missed accompanying her to the theatre because of his drinking (oral evidence and Exhibit A2). Mrs Benham mentioned also that Mr Benham failed to make important business calls from home.
The Applicant also argues that Statement of Principles Instrument No 5 of 1994 concerning psychoactive substance abuse or dependence is satisfied post-service, if that is the appropriate Statement of Principles. It is suggested that Mr Benham suffered from alcohol abuse or dependence because Mr Benham had knowledge or persistent or recurrent social or occupational problems caused or exacerbated by alcohol use. This is because of the Applicant's evidence as to the domestic disharmony caused by Mr Benham's drinking, his attendance at work while under the influence and his recurrent pattern of driving while intoxicated.
If the Tribunal is to find that the Applicant satisfies these basic requirements of the applicable Statements of Principles it must regard the Applicant as a witness of great reliability. Most of the evidence adverted to above came from the Applicant in her written statements or oral evidence. Some of it came from Dr Miller who gave evidence to that effect. He also gave evidence that he regarded the witness as truthful.
The Tribunal has considered this issue and is largely persuaded by the submissions made by Ms Doggett on behalf of the Respondent.
Ms Doggett called attention in paragraphs 59-62 above to the discrepancies between the Applicant's account of the drinking habits of the veteran and the documentary evidence.
Ms Doggett also made powerful submissions as to why the documentary evidence should be preferred. Some of that documentary evidence, including some documents recording comments by the Applicant, states that Mr Benham drank only moderately. Some of it, including a document by the Applicant, included lists of symptoms Mr Benham exhibited as a result of his anxiety condition and made no mention of excessive consumption of alcohol. One document, Exhibit R4, the record of interview by psychiatrist Dr Lawrence, as Ms Doggett pointed out, was contemporaneous and detailed about highly sensitive symptoms suffered by Mr Benham. It made no mention of any excess consumption of alcohol.
The Tribunal clarified with Dr Miller at the end of his oral evidence that he had no evidence, other than what Mrs Benham had reported to him, to back up his belief that Mr Benham was alcohol dependent. He also conceded that liver function test results from 1987 indicated that Mr Benham was not consuming excessive quantities of alcohol, at least at that time.
The Tribunal has considered Mr Lurie's arguments on behalf of the Applicant. These, and the Tribunal's problems with them, were:
It is common for a person who is dependent on or who is abusing alcohol to give an inaccurate alcohol history. This may be so but the Tribunal found Ms Doggett's submissions about the content of Mr Benham's interview with Dr Lawrence very persuasive. He was very frank with Dr Lawrence in that interview but made no mention of alcohol abuse. The Tribunal also finds the liver function test results supportive of Mr Benham's own history of his alcohol consumption. In the Tribunal's view, even if these were taken at a time when Mr Benham's alcohol consumption had recently dropped, they would not have changed markedly after the fall in his alcohol consumption. These results were in May 1987 much as they would have been for some considerable time.
Mrs Benham considers that Mr Benham was likely to have believed that if his anxiety could be cured his drinking would decrease and so it was unnecessary for him to tell medical practitioners about it. The tribunal has the same difficulties with this explanation as it had with the previous explanation.
Mrs Benham explains some of the documents from 1987 and later that suggest a moderate alcohol consumption as reflecting his reduced alcohol consumption after he was diagnosed with leukemia in that year. The Tribunal considers that if this is the explanation there would have been references in the documents to the deceased's drinking pattern having altered.
Mrs Benham explains her comment to the Department of Veterans' Affairs in T20 on 9 October 1995 to the effect that Mr Benham was a very light drinker as a comment she made because she wanted to blot out, to forget about all the horrible parts and bad times of her relationship with the veteran concerning his drinking habit. The Tribunal is still unconvinced for reasons stated in relation to the other explanations. Mrs Benham is reported to have used the very particular phrase, "a very light drinker" in her discussion with the departmental officer. If she had wanted to blot out memories she need have said less.
The Tribunal's answer to question 1 is therefore "no".
CONCLUSION
The Tribunal has come to the conclusion that there is no evidence that the Applicant's deceased husband had a history of psychoactive substance abuse or dependence or a history of alcohol abuse or dependence at any time between when he joined the air force in 1937 and when he died in 1995.
This means that the other issues listed above do not fall for determination as part of this application.
DECISION
The decision under review is affirmed.
I certify that the 94 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member and Dr M E C Thorpe.
Signed: .....................................................................................
AssociateDate of Hearing 19 May 2000
Date of Decision 14 November 2000
Representative for the Applicant Mr S Lurie
Representative for the Respondent Ms M Dogett
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