Bull and Repatriation Commission - [2001] AATA 59

DECISION AND REASONS FOR DECISION [2001] AATA 59

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. N1999/1192

VETERANS' APPEALS DIVISION       )
           Re      Joan BULL
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member

Date2 February 2001
PlaceSydney

Decision      The Tribunal affirms the decision under review.
  ..............................................
  M T Lewis
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS – war widow's pension – Statement of Principles applied – whether causal relationship between death from cerebrovascular accident and the Veteran's war service

Veterans' Entitlements Act 1986 – ss 120(1), 120(3) and 120A

Statement of Principles – Instrument No 23 of 1998

Repatriation Commission v Keeley (2000) 98 FCR 108
Borrett v Repatriation Commission [2000] FCA 1829
Re Wallis and Repatriation Commission [2000] AATA 1060
Repatriation Commission v Stares (1996) 41 ALD 212
Bushell v Repatriation Commission (1992) 175 CLR 408

REASONS FOR DECISION

Mrs M T Lewis, Senior Member

This is a review of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 17 June 1998 that refused a claim made on behalf of Joan Bull ("the Applicant") that the death of her husband James Arnold Bull ("the Veteran") was related to his war service. Review by the Veterans' Review Board ("the VRB") of that decision was sought on behalf of the Applicant on 9 November 1998. That decision was reviewed by the VRB on 13 May 1999 and affirmed. The Applicant then sought review by this Tribunal.
The Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. A statement made by Robert Pearce dated 28 June 2000 (exhibit A) and statements made by Iris Sutherland dated 26 June 2000 (exhibit B) and 8 January 2001 (exhibit C) were tendered as evidence on behalf of the Applicant. A report from Dr Hugh Pratt dated 25 July 2000 and letter of instruction from the Respondent to Dr Pratt dated 23 June 2000 were tendered as evidence on behalf of the Respondent (exhibit 1). Additionally the Respondent's advocate tendered a minute from her to Dr Kyin, Department Medical Officer, dated 13 December 2000 and minute from Dr Kyin to the advocate of the same date (exhibit 2). Mr Pearce gave oral evidence at the hearing, and Mrs Sutherland gave oral evidence by conference telephone.
background
The Veteran was born on 12 June 1916. He enlisted in the Australian Army on 1 April 1941 (aged 24 years) and served in the Middle East from 31 July 1941 until 6 June 1942, thereby having operational service. He was discharged from the Army on 15 March 1946, having been deployed in an engineering unit during his service. The Veteran died on 12 November 1997 (aged 81 years). The Death Certificate provided by Dr Pratt, the Veteran's local medical officer, shows the causes of death as (T12) –
(a)       Cerebrovascular accident (hours)
(b)       Transient ischaemic attacks – drop attacks (5 years)
(c)       Cerebral athero-sclerosis (5 years)
As the Veteran had operational service, this matter falls for consideration pursuant to s120(1) and (3) of the Veterans' Entitlements Act 1986 ("the Act"). As the claim was lodged after 1 June 1994 s120A requires that the matter be determined by reference to a Statement of Principles if a relevant Instrument exists. The Applicant sought to rely on her accrued rights to have the matter determined in accordance with the Statement of Principles in place at the time of the primary decision: Repatriation Commission v Keeley (2000) 98 FCR 108. The parties submitted, and the Tribunal agreed, that the relevant Statement of Principles is Instrument No. 23 of 1998 for Cerebrovascular Accident. The Applicant sought to rely on factor 5(e) of that Statement of Principles, viz. –
Regularly consuming an average of 250g/week of alcohol (contained within alcoholic drinks), for a continuous period of at least one year immediately before the clinical onset of cerebrovascular accident;
It was conceded for the Respondent that the Veteran consumed "an average of 250g/week of alcoholic beverage for a continuous period of at least one year immediately before the clinical onset of his cerebrovascular accident, and the Tribunal finds that this concession was properly made. The only issue between the parties was whether the Veteran's drinking was causally related to his war service.
the evidence
Mr Robert Pearce, the Applicant's son and the Veteran's step son, advised the Tribunal that the Applicant has resided in a nursing home for some years, she is very disabled and he holds her Power of Attorney. Moreover, the Tribunal finds from Mr Pearce's evidence that the Applicant is not mentally competent to give evidence. Mr Pearce gave oral evidence at the hearing. The Tribunal found him to be a credible witness who appeared to do the best he could without conjecture.
Mr Pearce said that he met the Veteran about six months before the Veteran and the Applicant married in 1947, when Mr Pearce was aged 7 years. He could not remember what impression he had of the Veteran when they first met. He recalled that he and his brother joined the Veteran and the Applicant for the second week of their honeymoon. He also understood that on the first night of the honeymoon the Veteran had met some golfers where they were staying and "he turned up in the bedroom very drunk and was sick out the window". Mr Pearce remained living at home until about 1959, and for a six month period in 1974/75. He was away from Canberra in the RAAF from 1966 to 1976, but after that time he mostly lived close by and visited the Veteran and the Applicant a few times each week.
Mr Pearce recalled that after the Veteran's marriage to his mother in 1947 the Veteran only drank on Saturday nights, but after four or five years this increased to drinking also on Sundays. He recalled that if he and his brother were in bed and awake the Veteran would come in and want to talk, to give them advice or "just carry on". He observed that at these times the Veteran was "drunk and not very coherent". In the early years the Veteran did not drink at home, but that changed once he retired, aged 60 years (in about 1976). Mr Pearce did not know why the Veteran's pattern of drinking changed at that time. He noted that once the Veteran retired he drank without concern about being too ill to go to work the next day. Mr Pearce said he drank on Saturday, Sunday, Wednesday and possibly another day when he played bowls, and on the other nights he had "a couple of drinks of port". The Veteran transferred from playing golf to bowls about 1968 or 1970. Mr Pearce said that the Veteran's drinking pattern continued at much the same level until 1994 when his mother had a heart attack. He tried to modify his drinking after that time by decreasing his visits to the club, but he continued to drink at home. During the twelve months before he died he spent eight months in a hostel attached to the nursing home in which the Applicant resides and the rest of the time at home. Mr Pearce said that the Veteran would drink wine every day after 4 pm. He would have several glasses of port or sherry in his room. He also went to bowls at least three times a week and drank beer while he was there.
Mr Pearce said that the Applicant did not talk in front of him about the Veteran's drinking, but he said "if it got to a shouting match I would hear it". He said that such incidents "would not be irregular". He said that if things did not go right for the Veteran he would become aggressive and upset. He had "a short fuse" and could "blow" even if he had not been drinking, but the Veteran did not exhibit aggression very often. In his written statement (exhibit A) Mr Pearce said that when the Veteran was not drinking he was "a meek and mild type of man". Whenever he was under the influence of alcohol, he became more voluble and aggressive especially if one said something to him with which he did not agree. He also said in his written statement, in contrast to his oral evidence, that although he never spoke to the Veteran about his drinking habits, on some occasions his mother raised it in Mr Pearce's presence. He said the Veteran's attitude was one of denial that he was over-indulging in alcohol or that he was a heavy drinker, and he asserted that it was his right to drink and he could do as he wished.
Mr Pearce noted that the Veteran's drinking occurred after he had been playing golf. The Veteran had been the club champion before the war but his golf was not at the same standard after the war when he used to drink before playing "to steady his nerves" and this affected his playing.
Mr Pearce said that they used to have contact with the Veteran's brother, Wilfred, but they rarely saw his sister, Iris, who lived in Melbourne.
Mr Pearce said that by about 1980 the Veteran's drinking was at a stage where he would become so drunk that he lost bowel control. He said that by that stage his mother had given up arguing with the Veteran, did not talk to him, and was not sleeping in the same bed as him.
Mr Pearce said that the Veteran did not talk much about his war experiences. The Applicant told him that the Veteran would not talk about the war. He was very upset about it and wanted to forget about it. Mr Pearce said that he did not ask the Veteran about the war, except when the Veteran brought it up. He understood from the service documents that the Veteran had been involved in drilling for water while serving in Western Australia. The Veteran did not say what he thought about his service. He noted that the Veteran had been AWOL while in the Army, and said "he did not seem to be the sort of person who would do that". He noted that the Veteran was not a very communicative person and did not show much interest in him and his brother when they were children, apart from when the Veteran came home drunk. Mr Pearce said that when he was aged 13 years he and his brother were involved in a bomb accident, and his brother was killed. The Veteran was unable to provide comfort for him at that time.
Mr Pearce learned some basic information about the Veteran's activities during the war from the Applicant's brother and other relatives who had been in the war. He understood that the Veteran was a sapper and was not in the infantry. He observed that the Veteran did not contribute to discussions about the war. He also noted that the Veteran did not send for his Campaign medals, the Applicant did.
Mr Pearce described the Veteran as a very conscientious man who always went to work and was always concerned about what people thought about him. He enjoyed the camaraderie at work at the CSIRO where he was a laboratory assistant. His social interaction was largely confined to golf and bowls and some neighbourly interaction. After he retired he worked in his garden, did cross-word puzzles, watched television and helped in the kitchen.
Mr Pearce was referred to a letter from Dr Scott-Findlay, the Veteran's surgeon, who provided a report dated 18 May 1984 (T4) in which he stated –
He is usually a fairly happy go lucky sort of person, but he looked quite miserable today when he came in and he asked could he apply for some pension increase.

Dr Scott-Findlay also noted that the Veteran suffered from reflux, chest pain and indigestion. In relation to the comment that the Veteran was "a fairly happy go lucky sort of person", Mr Pearce said that when the Veteran was socialising he was quite happy but in his interaction with the family he was not like that. There was a sharp distinction in his behaviour with his family and with others. He also noted that Dr Scott-Findlay was a fellow golfer.

Mrs Iris Sutherland, the Veteran's sister, also provided written statements (exhibit B and C), and gave oral evidence by conference telephone at the request of the Tribunal. She said that before the Veteran's enlistment he was a champion golfer and he used to have a few drinks after golf each Saturday. They both lived at home at that time, and Mrs Sutherland observed that when the Veteran returned home from golf he was regularly "happy and talkative" having played golf which he loved, spent time with his friends and had a few drinks. She said that at other times he was quiet.
She was still at home when the Veteran enlisted in 1941 but left for Brisbane soon afterwards. She saw the Veteran only once while he was in the Army and was not aware of his drinking pattern at that time. She was not at home when he was discharged from the Army, but she returned home for 18 months, just before the Veteran's marriage, and remained at home for 18 months while her husband was overseas. During the time immediately after the Veteran married and while she was in Canberra she saw him every week, and noticed that he was drinking more. She said on one occasion she tried to talk to him about his drinking and about his war service, and this led to an argument. He became "very angry" that she had mentioned the war and he would not give her any details but said it was "pretty grim". She could not recall any details about where the Veteran served during the war. She said that while before the war he drank at the golf club, after the war he also drank with his Army friends at the RSL club after golf.
Mrs Sutherland said that the Veteran was a "gentle" man and very popular with people, and therefore she was perturbed by his outbursts after the war while he was drinking. She did not see him have "outbursts" when he was sober. She noted that he had a lot of friends and was a "happy go lucky person". She said he was a good "provider" for his family. His only job was with the CSIRO, which he commenced after leaving school and continued until his retirement. She understood that he got on well with his bosses and was conscientious. His job required that he worked at weekends at times, and he was always willing to do that when necessary. He enjoyed his work and was fond of his work mates. He socialised with people at work on his own level and with his boss. She observed that during the week he came home from work and did gardening, but at weekends he pursued social activities.
The Tribunal notes that the Veteran had a medical examination dated 16 July 1985 (T5) in relation to a claim for epigastric hernia. He provided an alcohol history at that time in which it is recorded that he started drinking at the age of 18 years and drank on average three beers a week then. It was also noted in effect that his drinking had continued and that his consumption at that time was "10 beers/at weekends. Occasional glass of wine with meal" (T5, p27).
In his report dated 25 July 2000 (exhibit 1) Dr Pratt, the Veteran's local medical officer, noted that a recent liver function test and uric acid examination were normal.
submissions
Counsel for the Applicant acknowledged that there was a paucity of evidence about the Veteran's service and urged the Tribunal to take account of s119 of the Act given the absence of information about his service in the Middle East. As a sapper engineer the Veteran's service would have involved him in stressful and arduous work. The information about his service in Western Australia is that it was arduous work drilling for water. It was submitted that the Veteran could have developed a drinking habit because of the nature of his service, noting however that the Veteran had a history of pre-service drinking of three beers a week.
It was also submitted for the Applicant that Mrs Sutherland's evidence supports the hypothesis that the Veteran's drinking after the war was related to his service because not only was he drinking more, but whereas he had drunk at the golf club before the war, after the war he was also drinking at the RSL club with his Army friends.
The Tribunal was referred to the decision of the Federal Court in Borrett v Repatriation Commission [2000] FCA 1829. In that matter the Tribunal found that no reasonable hypothesis had been raised. His Honour, Tamberlin J, noted that whether a hypothesis is established and is reasonable is a matter of fact. His Honour found that the Tribunal erred in asserting that there was no evidence of the Veteran's drinking patterns on service and noted that he had drunk prior to service. There was also evidence from witnesses as to the veteran's drinking on service. These were considered by His Honour to be important matters, and he noted that it was a misstatement of the evidence on critical aspects when the Tribunal considered whether a reasonable hypothesis was raised, which pointed to error. Moreover, the Tribunal had rejected the hypothesis, not on the facts raised by the material, but on the facts as found by the Tribunal.
Counsel for the Applicant also referred to another decision Re Wallis and Repatriation Commission [2000] AATA 1060, the inference being that it supported the Applicant's case.In that matter the Tribunal found that a reasonable hypothesis had been raised on the evidence, that Mr Wallis enlisted at the age of 18 years and he did not drink prior to service but was drinking by the time of his discharge. He was withdrawn and moody and bad tempered, and did not often speak about his war service. There was evidence that Mr Wallis had said that having a few beers helped him with his nerves/anxiety state. He had a photograph of dead bodies securely located with other items he had collected during the war that was not opened by his family until after his death. He demonstrated a marked negative reaction to war films, and commented that they were not a true reflection of what it was really like.
It was submitted for the Respondent that on Mr Pearce's evidence, which reflected a relationship with the Veteran over many years, one of the most consistent parts of the evidence is the association between the Veteran's drinking and his sporting activities, and Mrs Sutherland's evidence supported that trend both before and after service. To suggest that the changed locus of his drinking from the golf club to the RSL club was indication of a service relationship was too tenuous and indeed was not reasonable.
The Respondent relied on the decision of the Full Federal Court in Repatriation Commission v Stares (1996) 41 ALD 212, that held that a merely abstract hypothesis will not be a reasonable hypothesis if it lacks support in the evidence although left open or not excluded by the evidence. To be a reasonable hypothesis the Tribunal will need to have evidence before it capable of converting an hypothesis from the abstract to one having relevance to the facts of the particular case. However, each element in the hypothesis does not need to be supported by evidence to establish it, as such a requirement would convert the hypothesis to a prima facie conclusion.
In Stares, the only evidentiary material about the commencement of that veteran's drinking was a statement from his 80 year old aunt who said she knew the veteran before the war and as far as she could remember he did not drink alcohol then but he did drink alcohol after he came back and "he was so different". The medical evidence in that matter noted the lack of information about the cause of Mr Stares' alcohol consumption, other than the stress of combat, but nonetheless opined on the probability that stress caused by combat contributed to the cause of, and the perseverance in, the habit. There was also persuasive evidence that Mr Stares' service was stressful.
It was submitted for the Respondent that the raised facts did not provide a connection for the Applicant between the Veteran's drinking and his war service.
consideration of evidence and findings of fact
Presumably Counsel for the Applicant drew the Tribunal's attention to the Federal Court decision in Borrett so that it did not fall into the same error in this matter. Otherwise that decision appears to be of no assistance to the Tribunal in this matter. The Tribunal notes that the facts in Borrett are somewhat different from those in this matter. The Court, of course, made no decision on the facts, and remitted the matter to the Tribunal so that the proper test could be applied to the facts. Borrett is of no particular help to this Tribunal in dealing with a similar fact situation.

The hypothesis raised is that the Veteran's pre-service drinking increased by the time of his discharge from the Army, that it increased further about five years after his discharge, and was maintained at that level until after his retirement when it increased further until the time of his wife's heart attack and invalidity, when he reduced his drinking somewhat. The Veteran considered his service in the Middle East to be "pretty grim" and he refused to talk about it. After the war he continued to be a gentle, "happy go lucky" man, except for occasional outbursts with his family, and except when he had been drinking. When he had been drinking he became aggressive. His post-service drinking venue included drinking with his Army friends at the RSL club, whereas his pre-service drinking was only at the golf club.
The Tribunal is required to consider whether a reasonable hypothesis has been raised to connect the Veteran's drinking with his war service. While it is reasonable to infer that his war service in the Middle East and in Western Australia were both stressful, albeit in different ways, the nature of that stress is not known and the effect that it had on the Veteran is not known, except to say that he did not want to talk about it. There is no evidence that the Veteran suffered from any psychiatric disorder arising from his war service. There is no evidence that he drank to deaden the memories of his stressful war service. It was not until his retirement that he drank at home, apart from coming home with his friends to continue drinking after he was already drunk. His drinking appeared to revolve around his sport, both golf and later bowls, and for many years it was confined to weekends. There is no evidence that his drinking affected his work in any way. He was well respected by his friends and his work colleagues and bosses, and appears to have had no difficulty in maintaining those relationships. While he did not move into a parenting relationship with his step-son to any extent, there is no evidence that it was his drinking that inhibited that relationship.
The Veteran gave no indication to his family that he was drinking because of his war service. Merely, he refused to discuss his war experiences and he refused to admit that his drinking was a problem. The juxtaposition of these two negatives does nothing more than leave open a possible relationship rather than pointing to it. The closest relationship that the Applicant can point to in associating the Veteran's drinking with his war service is that post-service he drank with his Army friends at the RSL club. This on its own is a fairly tenuous relationship with his war service. If it was one of a number of facts pointed to in the hypothesis it could be seen differently from being one of the main facts raised of an association.
In terms of the raised facts, when considered in relation to those in Stares, the Applicant's case would appear to be weaker. Certainly it is a much weaker case when compared with the Tribunal's decision Re Wallis, in which the facts can be clearly distinguished.
In considering the evidence as a whole in respect of the raised facts, the Tribunal is concerned that so much of the hypothesis is left open as to make it so tenuous as to be not reasonable, taking into account the definition of a "reasonable hypothesis" endorsed by the High Court in Bushell, v Repatriation Commission (1992) 175 CLR 408, where Mason CJ, Deane and McHugh JJ said, at 414:
[An] hypothesis cannot be reasonable if it is 'contrary to proved scientific facts or to the known phenomena of nature'. Nor can it be reasonable if it is 'obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous'.

In the words of the High Court in Bushell, the hypothesis raised by the Applicant in this matter is "too tenuous" and therefore the Tribunal considers that, pursuant to s120(3) of the Act a reasonable hypothesis has not been raised on the evidence.

Therefore the Tribunal finds that although the Applicant meets the words of factor 5(e) of the relevant Statement of Principles, the link between the Veteran's drinking and his war service has not been met. The decision under review will therefore be affirmed.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member
Signed:         .....................................................................................
  Associate
Dates of Hearing  21 December 2000 and 10 January 2001
Date of Decision  2 February 2001
Counsel for the Applicant         Mr M Vincent
Solicitor for the Applicant         Dibbs Barker Gosling
Solicitor for the Respondent    Ms P Hook, Department of Veterans' Affairs