Cannon and Repatriation Commission

[2008] AATA 662

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 662

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S 200700028

VETERANS' APPEALS DIVISION		)
Re		RONALD JOHN CANNON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr J G Short (Member)

Date31 July 2008

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

..............................................

J G SHORT
  (Member)

CATCHWORDS

VETERANS’ AFFAIRS – veterans’ entitlements – operational service – claim that alcohol dependence was war-caused – inability to obtain appropriate clinical management for alcohol dependence or alcohol abuse – decision under review affirmed

Veterans’ Entitlements Act 1986 ss 5B, 6, 9, 13, 120(1), 120(3), 120A

Repatriation Commission v Deledio (1998) 83 FCR 82
Bull v Repatriation Commission (2001) 66 ALD 271
Hardman v Repatriation Commission (2004) 82 ALD 433
Elliott v Repatriation Commission (2002) 73 ALD 377
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Bey (1997) 79 FCR 364

Lees v Repatriation Commission (2002) 125 FCR 331

Statement of Principles Instrument No 76 of 1998

Statement of Principles Instrument No 17 of 2008

REASONS FOR DECISION

31 July 2008   Mr J G Short (Member)  

1.      On 4 August 2005 Mr Ronald Cannon lodged an application for acceptance of “alcohol abuse/dependence” as war-caused.  Mr Cannon served in the Royal Australian Navy (the Navy) from 23 August 1969 until 12 July 1972.  His only period of eligible service, which was also operational service, was from 16 March 1970 until 9 October 1970 while serving on HMAS Hobart.  Mr Cannon contended that his alcohol dependence was relevantly related to his eligible war service through an “inability to obtain appropriate clinical management for alcohol dependence or alcohol abuse”.  His claim was rejected by the respondent (the Commission) on 14 July 2006 and that decision was affirmed by the Veterans’ Review Board (the VRB) on 5 December 2006.

2.      A number of issues were agreed between the parties, including the current diagnosis of alcohol dependence and the existence of a relevant Statement of Principles (SoP) concerning alcohol dependence and alcohol abuse, being Instrument No 17 of 2008.  Mr Cannon suggested that his circumstances satisfied factor 6(i):

“6.The factor 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 is:

…

(i)inability to obtain appropriate clinical management for alcohol dependence or alcohol abuse.”

3.      Paragraph 7 of Instrument No 17 of 2008 directs that paragraph 6(i) will:

“… apply only to material contribution to, or aggravation of, alcohol dependence or alcohol abuse where the person’s alcohol dependence or alcohol abuse was suffered or contracted before or during (but not arising out of) the person’s relevant service.”

It was agreed between the parties that Mr Cannon’s alcohol dependence or abuse did not arise out of his operational service.  This is consistent with a finding I made on 12 May 2005, after considering a decision of the Repatriation Commission which refused a claim in respect of “emotional disorder”.  On that occasion I varied the diagnosis to one of alcohol dependence and affirmed the decision as varied.  At that time there was no suggestion that the circumstances of Mr Cannon’s alcohol dependence satisfied the inability to obtain the appropriate clinical management factor.

4.      Noting the issues agreed between the parties, and in light of the evidence before me, I am satisfied that Mr Cannon has, throughout the assessment period, suffered from alcohol dependence.  I am also satisfied that the condition did not “arise out of” Mr Cannon’s eligible service.

issues before the tribunal

5.      The issue before me is whether Mr Cannon suffered or contracted either alcohol abuse or alcohol dependence during or prior to his period of eligible service, in this case his operational service from 16 March 1970 until 9 October 1970 and if yes, whether an inability to obtain appropriate clinical management for either of those conditions was relevantly related to his eligible service and provided a material contribution to, or aggravation of, either of those conditions.

legislative background

6.      The expression “operational service” is defined in ss 6 to 6F of the Veterans’ Entitlements Act 1986 (the VE Act). Under s 6C, a person renders operational service if he or she is, inter alia, allotted for duty in an operational area.  The expression “operational area” is defined in s 5B(1) by reference to Schedule 2 of the VE Act. This Schedule includes in Item 8 of Column 1, the Vietnam (Southern Zone) during the period from and including 31 July 1962 to and including 11 January 1973.

7. Section 13(1) of the VE Act provides, in effect, that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.

8. As the applicant has performed operational service, as defined in s 6 of the VE Act, the determination of whether his asserted conditions are war-caused is to be made by applying ss 120(1) and 120(3) of the VE Act. Those sections provide relevantly as follows:

“120 Standard of proof

(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

Note: This subsection is affected by section 120A.

…

(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

(a)       that the injury was a war-caused injury or a defence-caused injury;

(b)that the disease was a war-caused disease or a defence-caused disease; or

(c)       that the death was war-caused or defence-caused;

as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.

Note: This subsection is affected by section 120A.”

9. Under s 120A of the VE Act, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority has issued a SoP in respect of a particular kind of injury or disease, the reasonableness of an hypothesis is to be assessed by reference to that SoP. This follows from s 120A(3), which provides:

“(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 with 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); or

(b)a determination of the Commission under subsection 180A(2);

that upholds the hypothesis.

Note: See subsection (4) about the application of this subsection.”

Subsection (4) of s 120A excludes the operation of subsection (3) in certain circumstances which are not relevant to the present proceedings.

consideration

10.     Mr Cannon said that he joined the Navy in 1969 at the age of 18 years.  He said that he had tried alcohol before enlisting, but did not like it much.  He said that after six weeks of training, he and other members were allowed off the training base.  He and others tried alcohol again, but he still did not really like it.

11.     Mr Cannon said that he left Australia in March 1970 as a crew member of HMAS Hobart.  He made a number of trips to Vung Tau Harbour in Vietnam and that on the way to Vietnam spent some time at the American Base in the Philippines, Subic Bay.  He said that between March and October 1970 he visited Subic Bay and on some occasions, Singapore, for rest and recuperation. 

12.     Mr Cannon said that while in Subic Bay he was on duty one in every four days and that during his time off, he could visit Olongapo City.  This was a notorious area of bars and brothels.  Mr Cannon said that he would leave the Base at about 3:30pm and had to return by midnight.  He said that there was little else to do.  His alcohol preference was for beer.  He said he was probably “happy” by 11:00pm.  He said “I suppose I must have been drunk”.  Mr Cannon said he was never late returning to Base.  In respect of the affects of his alcohol consumption, Mr Cannon said he “just got happy”.  He said that sometimes he was involved in a few fights or arguments.  In relation to New Zealanders, Mr Cannon said that “Kiwis liked to fight a lot”.  He said that at the age of 18 years or 19 years he did not reflect much upon his drinking.  He said he never worried about it.

13.     Mr Cannon was asked whether he had advised Dr Ewer that he had been involved in some fights during operational service.  He said that he had simply told Dr Ewer that he had been involved in some fights when he was young.  He did not refer to operational service.

14.     The applicant called psychiatrist Dr Marty Ewer to give evidence.  Dr Ewer had provided reports dated 23 October 2000, 21 February 2002 and 26 May 2004.  Dr Ewer also explained that he has been Mr Cannon’s treating psychiatrist since 2002 and has seen him regularly in that capacity.

15.     Dr Ewer confirmed the diagnosis of alcohol dependence.  Dr Ewer said that Mr Cannon did not mention experiencing problems with alcohol during his operational service.  However, he said that after operational service, including the period in which Mr Cannon was still in the Navy, Mr Cannon had experienced a number of problems, including a period of being absent without leave and later problems with civilian police, including six charges and two periods in gaol, all involving offences related to alcohol.

16.     Dr Ewer distinguished what he called “alcohol misuse” from alcohol abuse and/or dependence.  He said that he uses the term “alcohol misuse” to describe circumstances in which a person uses alcohol inappropriately, but does not satisfy the diagnostic criteria for alcohol abuse or alcohol dependence.

17.     Dr Ewer said that he considered that Mr Cannon misused alcohol during his operational service.  He did not consider Mr Cannon experienced alcohol abuse or alcohol dependence until after Mr Cannon’s period of operational service.

18.     Dr Ewer suggested that Mr Cannon had initially misused alcohol and then abused alcohol and then became dependent upon alcohol.  He said that it was his view that alcohol abuse was likely to have first occurred prior to 1972, but sometime after Mr Cannon’s period of operational service.

19.     Dr Ewer explained that in the 1970s, people suffering from alcohol abuse or dependence were treated as more of a nuisance than patients suffering from a medical condition.  He explained that treatment for alcohol dependence had improved significantly since the 1980s.

consideration

20. The claimed condition of alcohol dependence is the subject of SoPs. I note that where a SoP exists I must apply the test prescribed by s 120A(3) of the VE Act, as explained in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 in the following way:

“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.”

21.     In considering whether there is an hypothesis connecting Mr Cannon’s alcohol dependence with his war service, and in applying the relevant Deledio steps to that end, I must consider all of the material before me, whether or not that material supports the hypothesis, as required by such cases as Bull v Repatriation Commission (2001) 66 ALD 271 at [21], the decision of Hill J in Hardman v Repatriation Commission (2004) 82 ALD 433 at [39] to [41], and Elliott v Repatriation Commission (2002) 73 ALD 377. In the last of these cases Stone J, at [25], likened the decision-maker’s task to striking out a statement of claim as failing to disclose a cause of action, where no consideration is given to whether the facts pleaded can be substantiated.

22.     An hypothesis that (once again, after taking into account all of the material) could be said to be “obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous” would not be reasonable and would not point to the relevant connection with the veteran’s service (see Bull (supra) at [18], where Emmett and Allsop JJ explained the significance in this regard of East v Repatriation Commission (1987) 16 FCR 517). I refer also to Repatriation Commission v Bey (1997) 79 FCR 364 where in their joint judgment, Northrop, Sundberg, Marshall and Merkel JJ said in effect (at pages 372.9 to 373.1) that a “reasonable hypothesis” involves more than a mere possibility, and is an hypothesis pointed to by the facts, even though not proved on the balance of probabilities.

23.     I am satisfied that steps 1 and 2 of Deledio have been satisfied in this case.  The suggested hypothesis is that Mr Cannon suffered or contracted alcohol abuse or dependence prior to or during his period of operational service, but not arising out of his operational service.  It was suggested that it was then his inability to obtain appropriate clinical management for his alcohol dependence or alcohol abuse, during his period of operational service that resulted in a material contribution to, or aggravation of, alcohol abuse or dependence.  A SoP in relation to alcohol abuse and alcohol dependence has been issued.  It was common ground that it is appropriate to have regard to the most recently issued SoP, being Instrument No 17 of 2008.  It was suggested, and I accept, that in relation to the basis of the current claim, there is no significant difference between the most recent SoP and Instrument No 76 of 1998, which was in force at the time the Commission made its decision in relation to the current claim. 

24.     I now turn to the third step as enunciated in Deledio.  This entails determining whether the relevant hypothesis complies with one or more of the factors referred to in the relevant SoPs.  This step involves considering all of the material before me, but without making any findings of fact at this stage of the process.  The history given by a veteran to a medical practitioner can constitute material before the Tribunal for this purpose:  Lees v Repatriation Commission (2002) 125 FCR 331.

25.     As mentioned, the parties were able to agree on issues which this Tribunal must determine.  The first issue suggested by the parties was whether the clinical onset of alcohol abuse or alcohol dependence was during operational service.  Mr Cannon’s counsel argued that notwithstanding Dr Ewer’s conclusion, there was material before the Tribunal supporting the contention that the clinical onset of either condition was during operational service. 

26.     Dr Ewer has provided a number of medical reports in relation to Mr Cannon’s alcohol dependence and has seen him regularly as his treating psychiatrist since about 2002.  It was his view that Mr Cannon did not suffer from alcohol abuse or dependence until after his period of operational service, which was also his only period of eligible service.  Dr Ewer explained that the history of problems arising out of alcohol abuse, provided to him by Mr Cannon, related to a period after his period of operational service and before about 1972.

27.     I am mindful that during his evidence Mr Cannon referred to becoming involved in some arguments or fights while stationed at Subic Bay or Singapore for brief periods between trips to Vung Tau Harbour.  I was also referred to a report of consultant psychiatrist Dr Shane Ryan dated 27 July 1999 (T9/45-56).  In that report, Dr Ryan said:

“He states that his problems with drinking excessively and getting into fights coincided with turning eighteen and hence being able to drink and also joining the Navy which just happened to occur at the same time.”

28.     I have considered all of the material before me and have reached the view that the material, when viewed as a whole, does not point to Mr Cannon suffering or contracting alcohol abuse or alcohol dependence during his only period of eligible service, that is his operational service from 16 March 1970 to 9 October 1970.  It is necessary for the material to point to such a circumstance in order for the hypothesis involving an inability to obtain clinical management for alcohol dependence or abuse to satisfy the SoP.  In these circumstances step 3 of Deledio is not satisfied and the hypothesis is considered not to be “reasonable”.  Mr Cannon’s claim fails.

29.     If I had been able to find that the material before me pointed to Mr Cannon experiencing alcohol abuse or alcohol dependence during his period of eligible service, then I would have been required to consider step 4 of Deledio.  It is only at that point that findings of fact would be able to be made.  Had I reached this point, I would have been satisfied, beyond reasonable doubt, that although Mr Cannon may have misused alcohol during his period of eligible service, he did not contract or suffer from alcohol abuse or alcohol dependence until sometime after his period of eligible service ended.  This is the view of Dr Ewer, who has been Mr Cannon’s treating psychiatrist since 2002.  In these circumstances the claim would have failed at this stage in any event.

30.     In all of the circumstances I am satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the conditions of alcohol abuse or dependence were related to Mr Cannon’s operational service. 

decision

31.     For the above reasons, I affirm the decision under review.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J G Short

Signed:         .....................................................................................
  Associate

Dates of Hearing  3 April 2008 and 26-27 June 2008
Date of Decision  31 July 2008
Counsel for the Applicant         Mr S Ower
Solicitor for the Applicant          Tindall Gask Bentley
Advocate for the Respondent  Mr A Crowe (DVA)