Campbell and Repatriation Commission
[2006] AATA 455
•25 May 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 455
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2005/619
VETERANS’ APPEALS DIVISION ) Re EDITH ROSETTA CAMPBELL Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date25 May 2006
PlaceMelbourne
Decision The decision under review is set aside and in substitution IT IS DECIDED that the death of the late William Robert Campbell was war-caused. ..............................................
Senior Member
VETERANS’ ENTITLEMENTS – widow’s application – deceased served in Northern Territory and operated a Bofors gun – engaged in resisting Japanese air raids – commenced drinking alcohol during service – heavy consumption thereafter – hypothesis of alcohol related hypertension and ischaemic heart disease precipitating fatal myocardiac infarct – Deledio stages satisfied – decision set aside
ALTERNATIVE DISPUTE RESOLUTION – postscript to decision – recommendation to parties to consider an ADR process – applicant widow elderly, frail, unwell, poor memory – inappropriate to expose her to cross-examination of events occurring up to 60 years ago – hypothesis narrow – information could have been informally exchanged – devoid of technicality
Veterans’ Entitlements Act 1986(Cth) s 120A (1) and s 120A (3)
Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Towns [2003] FCA 1262
Keeley v Repatriation Commission [1999] FCA 1103
Repatriation Commission v Keeley (2000) 98 FCR 108
Re Collier and Repatriation Commission [2004] AATA 1100
Re Jensen and Repatriation Commission [2005] AATA 474
Re Schubinski and Repatriation Commission [2005] AATA 1273
REASONS FOR DECISION
25 May 2006 Mr John Handley, Senior Member 1. Mrs Campbell is the widow of the late William Robert Campbell who was engaged in operational service in the Northern Territory (“NT”) during World War II by reason of his enlistment in the Australian Army. Mr Campbell died on 6 August 1987. The Veterans’ Review Board (“VRB”) on 8 June 2005 affirmed a decision previously made by the Respondent that her husband’s death was not war‑caused. This review is a challenge to the decision made by the VRB.
2. Mr and Mrs Campbell were married in December 1941. Mr Campbell enlisted in January 1942 and was discharged in February 1946. He served in the NT between September 1942 and December 1944. During that period of service he was engaged as a spotter and operated a Bofors gun. He was engaged in the resistance of 22 Japanese air attacks.
3. Mr Campbell did not consume alcohol prior to enlistment. Upon discharge from service he was observed to be consuming alcohol. The hypothesis advanced on behalf of Mrs Campbell was of ischaemic heart disease, having its origin in alcohol consumption during service.
4. A number of applications have been made in the past by Mrs Campbell upon the Respondent. The hypotheses included references to alcohol and obesity, alcohol arising out of an anxiety state and alcohol being consumed by way of self medication of a back injury which has been accepted by the Respondent as war‑caused. This review is confined only to alcohol giving rise to hypertension which in turn precipitated ischaemic heart disease and a fatal myocardial infarct. Evidence was heard only from Mrs Campbell and Mrs Rosemary McClease, Mrs Campbell’s daughter. Doctors Epstein and Strauss who had been engaged by the Applicant and Respondent’s representatives respectively and who had provided reports were not called to give evidence. Mr Piper, a historian engaged by the Respondent, provided two reports but was also not called. Mr Larkin appeared for Mrs Campbell and Mr Purcell appeared on behalf of the Respondent.
edith rosetta campbell
5. Mrs Campbell adopted a statement completed on her behalf by her solicitor on 11 July 2005. The statement constituted her evidence-in-chief. The statement is reproduced as follows save for references in it to a back injury suffered by her husband which are not relevant to these proceedings.
I married William Robert Nelson Campbell on 18th November 1941. Bill was born on 13th December 1922 and died on the 6th August 1987.
Bill served in the Australian Army from 14th January 1942 to 7th February 1946. From September 1942 to November 1944 he served in the Northern Territory. He told me that he served on anti aircraft guns during the period when the Japanese were bombing around the Darwin area.
Prior to enlistment Bill was neither a smoker or drinker of alcohol. I never saw him drink a drop of alcohol prior to his enlistment.
By return from service Bill was drinking every day. After discharge he worked as a shift worker. His duties were as a gate checker for Commonwealth Oil Refinery (later taken over by BP). My recollection is that as a shift worker there were three shifts which were rotated. The shifts were from 7am to 3pm, 3pm to 11pm and 11pm to 7am.
When he finished work at 3pm Bill would drink at the hotel on the way home from work. He held his liquor well and tended to have a happy demeanour after a few drinks. He was never abusive after drinking and by the time he arrived home he would be “merry”. When he completed work at 11pm he would drink at home. He would consume three to four large bottles of beer before going to bed. When he worked the night shift (from 11pm to 7am) he would drink at the hotel in the afternoon preceding his shift. He would also drink at the hotel on a Saturday afternoon. I believe that on average Bill consumed three plus large bottles of beer per day.
Bill worked at the oil refinery until his compulsory retiring age of 60 years. I recall tat for a period of some years he worked at a hotel on four nights per week. Subsequently he obtained a job as a cleaner at the offices of Holdens Limited. I remember that when he word at Holdens it was from 5pm to 8pm and after ceasing work he would drink at the hotel until 10pm. Bill must have been on permanent day shift from the time preceding him obtaining the second job at the hotel.
Bill was diagnosed as suffering hypertension in about the early 1960’s. He suffered a heart attack in the about the mid 1970’s. I recall that he was treated at the Repatriation General Hospital, Heidelberg and was on medication for his cardiac complaint thereafter.
I often told Bill that he was drinking too much alcohol for his health. Even after the hypertension was diagnosed (in about the early 1960’s) he continued to drink at the rate of three plus bottles of beer per day. Bill was predominately a beer drinker although he occasionally had a nip of rum or a glass of green ginger wine.
Bill did try to reduce his alcohol intake on a number of occasions. My recollection is that the occasions when he attempted to reduce his intake were either after I had asked him to do so or his doctor had given him advice to do so. Unfortunately, Bill simply did not have the willpower to reduce his intake of alcohol and he quickly reverted to his previous rates of consumption.
It is my recollection that Bill only finally managed to reduce his intake of alcohol after his retirement. Up until his retirement he had continued to drink at the rate of more than three large bottles of beer per day. It is my recollection that a reason why Bill was eventually able to reduce his alcohol intake was that we found that money was much tighter following his retirement. Following retirement he reduced in intake to a few glasses of beer at the hotel on a Friday night and a Saturday afternoon.
. . .
. . .
Bill never spoke much about the nature of his service. About the only time he ever mentioned it was when he was in company with his army mates. It is my understanding (from overhearing these conversations and the fact that after the war he suffered nightmares whereas prior to the war he slept peacefully) that Bill’s war service did cause him anxiety and ongoing stress. It was my understanding that Bill was frightened during the period when the Japanese were bombing the Darwin area.
Bill told me that he had his first drink of alcohol on his 21st birthday and that he did so at the urgings of his army mates. He enjoyed the experience and started drinking from that time. I therefore believe that Bill’s drinking habits were related to peer group pressure during service as well as stress.
I note that the Veterans’ Review Board at page 11 of its decision set out histories apparently recorded by doctors concerning my husband’s drinking habits. If those histories were accurately recorded then it is my belief that Bill misled the doctors about his drinking habits out of embarrassment. Certainly, his consumption of alcohol was as I have previously indicated.
Bill’s duties at BP were not physically arduous. His duties were mainly sedentary.
Bill died at the prince Henry’s Hospital where he had been admitted for about three weeks.
Bills treating family doctor was Mr S Skene (now deceased). Dr P Freeman took over Mr Skene’s practice at Bay Street Port Melbourne. The practice moved and became the Beacon Cove Medical Centre at Beach Street Port Melbourne and Dr Freeman has subsequently retired from that practice.
6. The documents lodged by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) were received into evidence and at page 70 is a statement completed by Mrs Campbell on 14 April 2005 which was prepared by her Legacy Advocate prior to the VRB proceedings. Relevantly that statement includes the following paragraphs:
I am aware that there are references on my husband’s Veterans’ Affairs file that he was only a light social drinker at the weekends, but this is definitely not correct. He drank on a daily basis after work for about 1½ hours and also went to the hotel on Saturdays for at least 3 hours. When he worked on shift work, he reduced his intake to only 3 – 4 beers before starting work. But this was still on a daily basis and he continued his heavy drinking on Saturdays.
I would estimate that he would drink an average of 6 – 8 beers per day and I believe that this was brought about by his stressful service in Darwin.
7. In cross-examination, Mrs Campbell was taken to an alcohol questionnaire completed on her behalf on 15 December 2003 found at pages 59 and 60 of the T‑documents. Parts of the questionnaire were confirmed as being accurate except that she disagreed with the recording that her husband consumed alcohol “just prior to his death” at “2/3 times per week”. She said that it was more likely that he was drinking every day but was drinking “less often” when he was unwell.
8. Mrs Campbell also disagreed with a comment made by a doctor in August 1950 that he was almost teetotal and other comments that he was a “weekend social drinker” and “beer at weekend/12 glasses”. She said that her husband did not want his doctors to know the quantities of alcohol consumed by him. She said that he would have been embarrassed to inform doctors of the true extent of his alcohol habit. She agreed that he would have consumed 12 glasses of beer on the weekend in about 1980, which was seven years before his death, but he was also drinking during the week. When she was then taken back to the alcohol questionnaire which referred to him drinking two or three times per week, Mrs Campbell then said that those statements were accurate and she was unable to recall his daily drinking habit. It was clear at this stage in the evidence that Mrs Campbell was confused as to detail.
9. Mrs Campbell was then taken to a statement found at page 45 by a former comrade, Mr Prestegar, who in a declaration of 1 November 1988 recorded that the late Mr Campbell drank heavily at regimental reunions, where he then became “loudmouthed, boisterous and antagonistic”. Mrs Campbell said that her husband on those occasions did drink heavily but said that she could not ever remember him being boisterous or antagonistic. She said that he was “too meek and mild and he used to be called the gentle giant”.
10. Mrs Campbell was then asked to discuss her husband’s working history. It appears that he was employed as a waterside worker after he was discharged from service but later obtained employment with the Commonwealth Oil Refinery which was later taken over by BP Petroleum. For a period of time, Mr Campbell held a second job at a local hotel and later obtained another part-time job at General Motors Holden. He said that when he held two jobs he did not consume alcohol between finishing one job and starting the other but did drink alcohol during his employment at the hotel and drank alcohol after he completed work with General Motors Holden. She said that she could not recall her husband ever being censured by a supervisor at BP for drinking alcohol before commencing work but did agree with a reference made in a decision of the VRB of 13 November 1988 (page 37) where she is recorded as having given evidence that her husband had been “able to ease up whenever he needed to such as on instructions from his supervisor at BP”. Her evidence in these proceedings with respect to that issue again highlighted, in my view, either her confusion or poor memory.
11. In re-examination, Mrs Campbell confirmed that she understood that the word “teetotal” meant that a person did not drink alcohol. She said that her husband was teetotal prior to enlistment but not subsequently. She said that the reference by a doctor in 1950 that her husband was “almost teetotal” was not true. She also said that a reference by a doctor in 1952 when her husband worked on the wharves that he was a “very moderate” drinker was true. However, the reference in the medical notes of 1963 and 1974 that he drank on weekends only were not true because in her memory he drank daily. Mrs Campbell said that on the occasions when he worked at General Motors Holden he would drink two or three “tall bottles” of beer at home nightly between Mondays and Thursdays. On Friday night he would drink at a hotel and would also drink at a hotel on Saturday afternoons. She said he did not drink on Sundays.
12. When asked whether her husband had ever attempted to give up drinking, she said that he had attempted to “but he didn’t try very hard”. She said that she attempted to encourage him to cease drinking “but it was useless”. She also had a recollection of doctors attempting to have him cease alcohol but she could not recall when those occasions were.
rosemary mcclease
13. Mrs McClease is the daughter of Mr and Mrs Campbell. She provided a statement to her mother’s solicitor on 11 July 2005 which was received into evidence and is reproduced as follows:
I am the daughter of Edith and William Campbell. I was born on 3rd August 1953.
I recall that from the time that I was a schoolgirl my father worked the day shift for BP. It was my recollection that he would commence work at about 6am and that his normal finishing time was 3pm but that he had obtained permanent overtime which meant that he actually finished work at 4pm.
I lived in my parents’ house until I married in 1976. It is my recollection that my father drank alcohol every day. He normally consumed alcohol at the hotel but he also drank at home. I recall that he would come home from work “merry” and in my belief he was slightly intoxicated. He would invariably be in good spirits and I do not recall that he was ever abusive after drinking alcohol. It was my guess that he usually spent one an a half to two hours in the hotel on most days.
I recall that in my early teenage years my father obtained a second job at a hotel and would work four nights per week. He then ceased the hotel job and commenced a second job as a cleaner at the offices of Holdens. I recalled that he worked at Holdens from 5pm to 8pm and that he would come home from work at BP and have tea at 4.30pm before departing for the cleaning job. I understand that after ceasing work at Holdens at 8pm he would then go to the hotel until it closed at 10pm at which time he would then come home. At the best of my recollection he worked at Holdens through most of my years at high school but he had ceased that job by the time of my marriage in 1976.
I recall that on Friday nights my husband would drink with my father at the hotel. My husband reported that my father drank at a pretty good rate when they were at the hotel together.
To my observations my father only reduced his drinking consumption after he retired.
14. I thought Mrs McClease was a responsible witness who had a good recollection of relevant events.
15. Mrs McClease said that her father was a very popular and well liked person in the Port Melbourne district. Her early memories of her father consuming alcohol occurred during the years when hotels closed at six o’clock. He said that he would drink at a hotel on his way home from work and on arrival at home he would greet Mrs Campbell by “dancing her around the kitchen”. Mrs McClease also recalled that she could smell the beer that her father had consumed.
16. Mrs McClease said that when she was about 13 years of age, and despite her age, she frequently attended the hotel in Albert Park where her father held a part-time job. She recalled that he conducted a talent night at the hotel on Tuesdays and worked the other weekday nights being engaged in crowd control and keeping good order. She said that she would attend the hotel with her mother because she was an only child and could not be left at home by herself. She said that her father would arrive home from work at about four o’clock and have an early evening meal. He then started at the hotel at seven o’clock. She said he would drink “moderately” throughout the night at the hotel by consuming approximately one seven ounce glass of beer per hour over a period of about three hours. She said after the hotel closed and he was engaged in cleaning up he would also drink several glasses of beer from jugs of beer that were made available to him and other employees by the publican. When the cleaning was completed he would then drink three or four more glasses of beer. She recalled that he drank full strength beer. Despite the quantity of beer consumed, she said that her father generally drove home and he did not appear to be impaired. She said he was never at the stage where he was not in control but she did recall that he would have been “merry” and would have been “slightly intoxicated”. Later, after .05 laws became prevalent in Victoria and she had reached 18 years she said that he would give her the car keys and she would drive home.
17. Later when she met her fiancé she said that her father would attend a local hotel with him on Friday nights. She also recalled that when her father worked at General Motors Holden he came home later than 8.00pm at night (refer evidence of Mrs Campbell) and then consumed bottles of beer. She had a memory of her father arriving at home with bottled beer in paper bags and it was her understanding that the bags contained two or three bottles.
18. Mrs McClease said that alcohol was “not an enormous problem”. She said that she could not recall her parents ever arguing about his alcohol consumption. She described her parents as “getting on extremely well”. She did recall that her mother attempted to dissuade him from drinking alcohol on some occasions but he did continue to drink. She also recalled that on two or three occasions per year there were large parties at her home and she recalled her father singing and dancing and always holding a glass in his hand. She said that he would then be “happy and foolish”. She also recalled occasions at regimental family picnics (refer statement of Mr Prestegar) were he then was boisterous but said that he was antagonistic only to the extent that he would be argumentative but not violent. She said that a comment referred to by Mr Prestegar in his statement attributable to her father namely, “who put the food in the Esky – it takes up good grog space” was something that her father typically would have said.
19. In an attempt to obtain some precision about her father’s alcohol consumption, it appears that whilst Mrs McClease was an early teenager, that is from about 1966 until 1968 or 1969, her father worked at the hotel and consumed the alcohol referred to above. She thought that he ceased at the hotel in about 1971 and shortly thereafter obtained his other part-time job with General Motors Holden. When alerted to comments made by doctors, particularly a comment made in 1971 of “weekend social beer”, Mrs McClease said that her father was likely to drink on weekends. She said he was not a “social drinker” because going to a hotel of itself was a “social occasion”. She said in 1974 he was working at General Motors Holden and it was at this time that he was drinking bottled beer nightly at home after the completion of work.
20. Mrs McClease agreed that her father did reduce his alcohol consumption later in life. She said after she married and her daughter was born her parents provided day care whilst she was at work. She said her father did not drink alcohol during the day when he had the care of her daughter however she was aware that her father continued to attend a hotel on Friday nights and on occasions when he went out he would take light beer. Her father’s reduction in beer consumption also coincided with his retirement where he then would have had a reduced income.
21. Mrs McClease agreed with the evidence of her mother that her father would have been embarrassed about discussing his alcohol habit with his doctors. She recalled that he “didn’t like people telling him how much he should or shouldn’t be drinking or eating”.
the t‑documents
22. In the absence of other witnesses called to give evidence reference will be made to documents lodged by the Respondent pursuant to s 37 of the AAT Act.
23. Mrs Campbell’s sister, Mrs Lorna Morgan in a letter of November 1988 (pages 41 – 42) recorded
My brother was a healthy man before he joined the forces army and during his army history he seemed to deteriorate. Due to army pressure and mental stress after his release I seen a big difference after the war . . . and to ease his mind of stress he had to drink to ease the stress . . .
24. Mr Prestegar in his declaration of November 1988 (page 45) recorded that he first met the late Mr Campbell in March 1942 upon enlistment. He said they then drank beer at the Racecourse Hotel when on leave at two or three nights per week. When the regiment moved to Darwin in September 1942, he said
“The unit was in action for most of the air raids which took place both daily and at night. Bill was a member of a gun crew during this time, this meant that the gun crews were under considerable stress from the bombing and strafing for months on end being on a stand to situation 24 hours a day. We were issued with a beer ration on an irregular basis with drinkers buying bottles from the non-drinkers.
25. He also recorded that after discharge from service a regimental association was formed and he recalled Mr Campbell drinking heavily and becoming “loudmouthed, boisterous and antagonistic at annual reunions”. Additionally, he said there were family functions for regimental members held throughout the year and on those occasions he recalled Mr Campbell attending with “at least two dozen or more bottles of beer and he would drink until he could not stomach any more”.
26. In an appeal to the VRB in 1988, the hypothesis then advanced was of Mr Campbell having a psychiatric illness subsequent to service giving rise to his alcohol consumption. Whilst that hypothesis was dismissed, the VRB then in part decided:
The Board accepts the evidence before it that the veteran was a non-drinker before enlistment and that he began drinking beer during his war service. As a gunner on Bofors guns in 12 Light Anti Aircraft Regiment in Darwin during the height of the bombing in 1943, the Board accepts that the veteran’s service would have been stressful.
27. One of the applicant’s treating physicians, Dr Poolman wrote a report on 23 November 1988 (page 46) which relevantly recorded:
From the evidence before me it is probable that his beer drinking was associated with war service. It began during the war and continued after he was discharged. This was due to the stress of war service which continued until he died . . .
28. In a report of 28 November 2005, Mr Piper, having conducted extensive research into Japanese bombing raids in the NT, concluded that there were 22 air raids during the period when Mr Campbell was serving. He also recorded that the late Mr Campbell and his unit “were under attack on seven occasions” and “the general area where he was located was bombed”.
29. With respect to conditions of service generally, Mr Piper reported on 11 April 2006 that
Beer, cigarettes and cards were the constant companion of servicemen during World War II. Remoteness of a posting, heat, humidity, boredom, anxiety and the desire for company all contributed to this lifestyle. Few young soldiers could resist the temptation to “fit in” and be part of the group. This is a personal observation noted during 30 years involvement with Australian Military Personnel in many areas and situations.
Later, he recorded
As a consequence there is no doubt that many young Australians commenced drinking or were introduced to alcohol by older companions during World War II. The fact that they were away from home and receiving a regular Army, Navy or Air Force wage also meant that it was affordable. There was no parental guidance and it was part of the growing up culture of the services. Indeed not to drink with one’s mates could mean being ostracised and “left out” of the group. Not an altogether comfortable position for a young man far from home.
30. Mr Piper did record that beer was rationed and sometimes in short supply. He also recorded that soldiers were subject to military discipline and being drunk or misbehaving would not have been tolerated. He noted from the records that the late Mr Campbell was disciplined for prejudicial conduct and confined to barracks for seven days. He noted “it is probable that this was an alcohol related matter”.
blood pressure recordings
31. An examination of the documentation lodged discloses the following blood pressure records:
31 July 1945
140/90
24 January 1946
130/80
1 May 1950
125/85
4 June 1952
130/80
25 October 1963
140/80
1964*
160/100
25 February 1974
210/100 and 170/100
25 August 1980
180/100
* The VRB in the decision presently under review and the Respondent in the 1988 application referred to a blood pressure reading in 1964 of 160/100. The source of that information in both the VRB decision and the Repatriation Commission decision (page 29) is not disclosed.
32. Dr Freeman wrote a report for the Respondent on 13 October 1987 being approximately two months after Mr Campbell died. Dr Freeman recorded a blood pressure reading of 180/110 but he did not record when that reading was taken. He also recorded a blood pressure reading of 155/65. Again the occasion of that reading was not disclosed.
death certificate
33. The death certificate (page 21) records the cause of death as “Inferoposterolateral acute myocardial infarction with cardiogenic shock – 4 weeks; Ischaemic heart disease – 18 months; Left ventricular failure – 18 months”.
kind of death\statement of priciples
34. Section 120A (3) of the Veterans’ Entitlements Act 1986 (“the Act”) provides that for the purposes of s 120 (3) a hypothesis connecting the death of a person with the circumstances of service will be reasonable only if there is a Statement of Principle in force. In order to determine whether there is an applicable Statement of Principle it is necessary to identify “the kind of death” (refer Repatriation Commission v Hancock [2003] FCA 711). The word “kind” does not compel a precise identification of the cause of death (refer Repatriation Commission v Towns [2003] FCA 1262 at paragraph 30.
35. In the present application the immediate cause of death was an acute myocardial infarction. That had its origin in ischaemic heart disease. During the assessment period which commenced on 13 February 2004 there were two Statement of Principles with respect to ischaemic heart disease being No 53 of 2003 and No 9 of 2004. The latter Instrument amended parts of the former Instrument. Those amendments are not relevant to these proceedings. The relevant factor under Instrument No 53 of 2003 was 5 (a) being “the presence of hypertension before the clinical onset of ischaemic heart disease”.
36. As a fact, I am satisfied that the deceased did suffer from ischaemic heart disease. The identification of that disease in the death certificate is self evident. But it would appear that there is some imprecision in the duration of that condition as the death certificate records. Dr Freeman diagnosed angina on 17 July 1976 (T‑documents page 23). I am satisfied that the clinical onset on ischaemic heart disease occurred at that date.
37. I am also satisfied that the deceased suffered from hypertension. A finding must be made of that condition being present before the hypothesis advanced by the Applicant can be found to be reasonable.
38. Whilst I will return to this aspect later in this decision the definition of hypertension as found within Instrument No 35 of 2003, that Instrument also existing within the assessment period, is of a ‑
Usual blood pressure reading where the systolic reading is greater than or equal to 140mmHg or where the diastolic reading is greater than or equal to 90mmHg or the regular administration of anti-hypertensive therapy to reduce blood pressure.
39. The schedule reported earlier of the blood pressure readings taken of the deceased indicate the earliest recording of hypertension being at 25 October 1963 when the systolic reading was equal to 140mmHg. The recording of 1964 records both the systolic and diastolic readings being elevated but I cannot locate any other blood pressure readings until 1974 when both readings then indicated an elevation in the systolic and diastolic pressure. Whether the readings of 1963 and 1964 can amount to “usual” blood pressure readings is perhaps speculative. Whilst the blood pressure readings taken at 25 February 1974 would give rise to a reasonable suspicion of themselves to hypertension, a medical examiner on that date recorded that the late Mr Campbell was then “under treatment for high BP” (Exhibit 7). It follows that even if at 1974, the readings then did not amount to the “usual” blood pressure, his treatment then for “high BP” in my view amounts to “the regular administration of anti-hypertensive therapy to reduce blood pressure”. It therefore follows that the deceased by definition did suffer from hypertension and the clinical onset of it was, at the latest, on 25 February 1974.
40. For all of the above reasons there was the presence of hypertension before the clinical onset of ischaemic heart disease (refer Instrument No 53 of 2003 factor 5 (a)).
41. The relevant factor within the hypertension Instrument No 35 of 2003 is 5 (b) being –
Consuming an average of at least 200gms per week of alcohol which cannot be decreased to less than an average of 200gms per week at the time of the clinical onset of hypertension.
42. That factor has been amended by Instrument No 3 of 2004 and by the latter Instrument that factor now reads –
Consuming an average of at least 200gms per week of alcohol for a continuous period of at least six months immediately before the clinical onset of hypertension which cannot be decreased to less than an average of 200gms per week of alcohol.
43. The word “alcohol” is defined at paragraph 8 of the earlier Instrument as being
Measured by the alcohol consumption calculations utilizing the Australian standard of 10grms of alcohol per standard alcoholic drink.
44. For the purposes of these proceedings if a seven ounce glass of beer constitutes a “standard alcoholic drink” the quantity of 200gms per week would amount to 20 seven ounce glasses of beer per week.
45. Having regard to the date of commencement of the assessment period (13 February 2004) and the relevant dates of the two hypertension Instruments, both exist within the assessment period (refer Keeley v Repatriation Commission [1999] FCA 1103; Repatriation Commission v Keeley (2000) 98 FCR 108).
deledio
46. In order to determine whether a reasonable hypothesis has been raised connecting the death of Mr Campbell with service, Mrs Campbell needs to satisfy the four concluding paragraphs recorded in Repatriation Commission v Deledio (1998) 49 ALD 193 at 206 namely –
“1. The tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B (2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B (2) (d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4. The tribunal must then proceed to consider under s 120 (1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
47. In the present case there is a hypothesis advanced by Mrs Campbell namely, operational service in Darwin involving exposure to Japanese bombing raids gave rise to an alcohol habit which commenced in service and which continued as a civilian giving rise to hypertension and ischaemic heart disease which precipitated a myocardial infarction causing death. As may be seen earlier there are Statements of Principles which are in force. There is material being the contents of the documents lodged and the evidence heard at the hearing pointing to the hypothesis fitting, or being consistent with, the templates of the Statement of Principles. It follows that the first three stages of the Deledio conclusion are satisfied.
48. It follows that enquiry must be made with respect to the fourth stage of Deledio, that is, consistent with s 120 (1) of the Act can I be satisfied beyond reasonable doubt that the death was not war-caused. If I am not so satisfied, the claim will succeed. It is only at this stage that facts will be found.
49. In this application there was documented and viva voce evidence from Mrs Campbell that her husband did not consume alcohol prior to service. It would appear from the letter of Mrs Morgan that her brother did not consume alcohol prior to service. There have been findings made by the VRB (page xvii and 38) on two different occasions, and then upon the evidence before it on each occasion, that the deceased did not consume alcohol prior to service. Whilst not bound by those findings, it is indicative of a consistency of the evidence of Mrs Campbell and the material put before the VRB on each occasion of the absence of alcohol prior to service. As a fact I am satisfied that the deceased did not consume alcohol prior to service.
50. The case then on behalf of Mrs Campbell was of her husband commencing alcohol during his enlistment.
51. The earliest evidence of alcohol consumption appears to be found within the declaration of Mr Prestegar (page 45) namely of he and the deceased drinking beer at the Racecourse Hotel shortly after enlistment and when they were then stationed at Werribee in Victoria. The quantity of beer then consumed was subject to Army salary. Later, Mr Campbell was transferred to the NT where in an operational area he was engaged in service which exposed him to Japanese air attack in his capacity as a spotter and operator of a Bofors gun. There was evidence of damage caused by Japanese bombing. It is not difficult to imagine a more stressful or frightening exposure to enemy forces than being ground based whilst opposing forces are flying overhead dropping bombs. Even in the absence of the declaration of Mr Prestegar, I would have been satisfied that “gun crews were under considerable stress from the bombing and strafing for months on end” and when “on a stand to situation 24 hours a day”. As has been heard in this and many other veterans’ applications, beer was made available to Australian troops and was frequently used as a relaxant from stressful situations. Unfortunately thereafter, many persons acquired a lifetime habit of use of alcohol, often by reason of addiction or dependence.
52. Additionally, the comments and observations made by Mr Piper in his report have been frequently heard in many other veterans’ applications, that is, young men, previously teetotal, being put into the company of older men in a stressful situation where beer is made available and it is then consumed because “few young soldiers could resist the temptation to fit in and be part of the group” or in the absence of “parental guidance . . . it was part of the growing up culture of the services. Indeed not to drink with one’s mates could mean being ostracised and “left out” of the group. Not an altogether comfortable position for a young man far from home” (refer report Mr Piper, page 3, 11 April 2006). Having regard to this evidence, I am satisfied and find as a fact, Mr Campbell did commence to consume alcohol during his service.
53. The documented and viva voce evidence of Mrs Campbell and the documented evidence of Mr Prestegar and Mrs Morgan clearly indicates Mr Campbell consuming alcohol at discharge and subsequently. That Mrs Morgan recorded “I feel sorry for my sister-in-law the war has left a sad memory to this day” points to alcohol being consumed in considerable quantities. Mr Prestegar was more graphic in his recollection of the quantities of alcohol consumed subsequent to discharge by referring to the late Mr Campbell as drinking “very heavily”, becoming “loudmouthed, boisterous and antagonistic”, attending regimental functions with “at least two dozen or more bottles of beer” and then observing Mr Campbell “drink until he could not stomach anymore”.
54. There was evidence also from Mrs Campbell and Mrs McClease of attempts to encourage Mr Campbell to cease drinking. Those attempts to have him cease, in my view, are consistent with concern being expressed by those closest to him that he was drinking large quantities of alcohol on a regular basis to what was feared to be his detriment.
55. There were references made within some doctors’ notes to histories taken from Mr Campbell which were thought to be referrable to his alcohol habit but which were largely dismissed by Mrs Campbell and Mrs McClease. In the absence of Mr Campbell, the reasons for giving the histories of denial or modest consumption as recorded, will not, as a fact, ever be known. Having heard many veterans’ applications I am not surprised by this evidence. Modest or false histories to doctors of alcohol consumption frequently form part of the evidence upon review of applications for pension under the Repatriation legislation. Almost always the explanation given by either the veteran or family members is of the veteran being embarrassed by such disclosure or a fear of being admonished in the event of disclosure.
56. In the present case whilst precision as to the quantities consumed cannot be achieved there is much to suggest that the late Mr Campbell did drink large quantities of alcohol on a regular basis subsequent to discharge until the early 1980’s.
57. On the evidence of Mrs Campbell her husband was drinking on a daily basis. She said that he drank at a hotel on his way home from work and also drank beer from large bottles at home. He also drank at a hotel on Saturdays.
58. On the evidence of Mrs McClease, she recalled as a child her father arriving home most nights in a merry state and smelling of beer. As a young teenager she attended a hotel on a regular basis with her father and mother and gave an estimate of him drinking three seven ounce glasses of beer over a three hour period until 10.00pm and then drinking beer whilst cleaning up and drinking more beer when work was finished. The estimates given by her point to her father drinking nine or ten glasses of beer on the four nights per week alone that he worked at the hotel. There was evidence also of him attending the hotel on Friday nights and Saturdays.
59. Later, when Mr Campbell started work at General Motors Holden, after he had ceased his job at the hotel, Mrs McClease had a memory of him arriving home with bottled beer and she also had a memory of watching him drink it in the lounge room at home.
60. On the evidence heard, I am satisfied and find as a fact, that the late Mr Campbell did consume much more than an average of at least 200gms (20, 7oz glasses) per week of alcohol at least until his retirement in 1982.
61. I am also satisfied that the consumption of alcohol at those levels was consistent with the habit originating in service. Support for this finding is also to be found in the opinion of Dr Poolman who connected service with alcohol consumption on the probabilities (refer paragraph 27 earlier).
62. I would acknowledge on the evidence of Mrs McClease that there were occasions when her father drove home after work at the hotel. He probably then did have a blood alcohol content greater than .05 per cent. I suspect he later also understood that his blood alcohol content would have exceeded .05 per cent because when Mrs McClease turned 18 and obtained a driver’s licence she would drive her father home.
63. With respect to the conditions of hypertension and ischaemic heart disease, I am satisfied and find as a fact, that the deceased did suffer from hypertension as defined and the clinical onset of it was no later than 1974. I make that finding having regard to the blood pressure readings taken in 1974 and although strictly not necessary, by reason of the comments made by an examining doctor in February 1974 of Mr Campbell then being under treatment for high blood pressure.
64. I am also satisfied and find as a fact, that the clinical onset of ischaemic heart disease occurred in 1976. I make that finding having regard to the diagnosis by Dr Freeman of angina on 17 July 1976 (T‑documents, page 23).
65. It follows upon that chronology that there was a presence of hypertension before the clinical onset of ischaemic heart disease.
66. In so far as the amending Instrument concerning hypertension is concerned, I am also satisfied that 200gms of alcohol per week on average was consumed for a continuous period of at least six months immediately before the clinical onset of hypertension in 1974.
67. The remaining issue is the second part factor 5 (b) in each of the hypertension Instruments namely, whether the consumption of an average of at least 200gms of alcohol per week “cannot be decreased to less than an average of 200gms per week”. That language has been the subject of analysis in Tribunal decisions (refer Re Collier and Repatriation Commission [2004] AATA 1100; Re Schubinski and Repatriation Commission [2005] AATA 1273 and Re Jensen and Repatriation Commission [2005] AATA 474).
68. Differing comments have been made by Tribunal Members in an attempt to comprehend the words that appear in those two factors and what they are intended to mean. In Schubinski the Tribunal (paragraph 100) decided that the applicable words “cannote an element of an inability on the part of the person concerned to decrease his or her average consumption to below the average stated”. The Tribunal then accepted a submission put by the Repatriation Commission advocate that the applicable words “refer to a compulsion to drink, not merely the fact of drinking”. In Jensen the Tribunal decided, having regard to the language, the phrasing and the punctuation “it is impossible to make any sense of it”. In Collier the Tribunal decided that that part of factor 5 (b) “just does not make sense”.
69. It might be thought that the factor is intending to refer to an inability on the part of a veteran to decrease his or her alcohol consumption but whilst being in agreement with the sentiments expressed by other Tribunal Members, my confusion also extends to the contradiction in tense. That is, the consumption of an average of at least 200gms per week of alcohol for a continuous period of at least six months before the clinical onset of hypertension, is a reference to the past whereas the words “which cannot be decreased” are a reference to the present. If the word “cannot” was substituted with the words “could not”, comprehension might be achieved. In so far as the earlier Instrument is concerned, it might be thought that the factor is intending to mean that whilst consuming an average of at least 200gms per week of alcohol a veteran was unable to decrease that consumption to less than an average of 200gms per week at the time of the clinical onset of hypertension. That is, there was a consumption of 200gms per week which at that time could not be decreased below that level coinciding with the time of clinical onset of hypertension. There is again a mixture (and confusing) of tenses and the punctuation and phrasing, as was observed in Jensen,
70. Equally consistent with the observations made in Jensen, it is not apparent whether the qualifying part of factor 5 (b) is intended to operate before or after the clinical onset of hypertension (Instrument No 3 of 2004).
71. On balance I am satisfied that the language in each of the two Instruments is unclear and devoid of meaning. Repatriation legislation must continue to have a beneficial approach. In concluding this part, if it is intended by each of these factors to have a concept not only of having consumed a defined quantity of alcohol but also having an inability to reduce that consumption, I would find as a fact, on the evidence heard, that prior to 1982 Mr Campbell did have such an inability. Mrs Campbell did refer to attempts by her to have her husband reduce his beer consumption but as she said “he didn’t try very hard” and attempts to have him give up consuming beer “was useless”.
72. Having regard to all of the foregoing reasons I am not satisfied beyond reasonable doubt that death was not war-caused. The claim must therefore succeed and the decision under review must be set aside.
postscript
73. On 1 April 2005, the Administrative Appeals Tribunal Act 1975 was amended. It introduced a number of alternative dispute resolution processes to which parties may be referred or directed. Those processes comprise conferencing, mediation, neural evaluation, case appraisal and conciliation. Under the amending legislation the consent of both parties to participate in a mediation conference, (which existed under the former legislation) is no longer a requirement for referral or direction.
74. This application was a matter which in my view was more than suitable for referral or direction to a dispute resolution process. Whilst I would acknowledge that the ambit of Mrs Campbell’s claim was not confined or narrowed until the morning of the commencement of the hearing, with adequate pre-hearing conferencing and compliance with Tribunal directions as to lodging Statement of Facts and Contentions and other documents upon which reliance would be sought, the parties should approach an ADR process to which they have been referred or directed with confidence and should enter such a process mindful that the opportunity to resolve can be achieved, particularly if the process is conducted in good faith (which is mandated by s 34A(5)).
75. In the present case, Mrs Campbell is 88 years of age and is unwell. She travelled to the Tribunal and it was then learnt that she needed the assistance of a walking frame. She was obviously frail. She should not have been exposed to having to give evidence or be cross-examined but rather should have been given the opportunity to enter into a non-adversarial process, devoid of technicality, with an eye towards being able to informally articulate her case without having to recall matters of detail concerning some events which occurred more than 60 years previously. An ADR process in a similar type case would involve a willingness on the part of both parties to exchange information, draw reasonable inferences, acknowledge the meritorious service of the deceased veteran and honour the beneficial nature and spirit of veterans’ entitlements legislation.
76. I would hope that claimants under the Repatriation legislation, both widows and veterans, their representatives, the Department of Veterans’ Affairs and their advocates will come to recognise that entitlement to pension and benefits often arise out of life threatening events where there has subsequently been periods of illness and unhappiness and where domestic relationships have suffered. The veterans’ community, and by that I include the Department of Veterans’ Affairs, should approach the resolution of disputes by the ADR processes now found within the AAT legislation.
I certify that the 76 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior MemberSigned: .....................................................................................
Personal AssistantDate of Hearing 11 May 2006
Date of Decision 25 May 2006
Counsel for the Applicant Mr A Larkin
Solicitor for the Applicant Williams Winter
Counsel for the Respondent Mr G Purcell
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