Clarke and Repatriation Commission
[2004] AATA 54
•23 January 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 54
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V03/147
VETERANS' APPEALS DIVISION ) Re LEO MICHAEL CLARKE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr J Handley, Senior Member Date23 January 2004
PlaceMelbourne
Decision The decision under review is set aside. In substitution IT IS DECIDED that cerebrovascular accident is war caused. The application is remitted to the respondent for calculation of pension entitlement. (Sgd) J Handley
Senior Member
VETERANS’ ENTITLEMENTS – cerebrovascular accident – eligible service – connection with service by alcohol consumption – dispute as to quantities – inconsistency in estimates – dispute whether connection was temporal or causal – decision set aside
Veterans’ Entitlements Act 1986 (Cth), s 8(1)(b) and s 9(1)(b)
Re Cole and Repatriation Commission [2004] AATA 3
Repatriation Commission v Law (1980) 31 ALR 140
Repatriation Commission v Tuite (1993) 29 ALD 609
Statement of Principles Instrument No. 31 of 2002
Statement of Principles Instrument No. 53 of 1999
Statement of Principles Instrument No. 58 of 2003REASONS FOR DECISION
23 January 2004 Mr J Handley, Senior Member 1. The applicant applies to review a decision made by the Veterans’ Review Board (“VRB”) on 14 October 2002. The VRB then affirmed a decision previously made by the respondent on 31 October 2001 to reject an application for cerebral ischaemia which, for the purposes of this application, and with the consent of the partieswill be referred to as cerebrovascular accident (“CVA”).
2. The claim upon the respondent was made on 24 August 2001 and within the assessment period the only relevant Statement of Principles (“SOPs) is Instrument No. 53 of 1999 entitled “Cerebrovascular Accident”.
3. That Instrument was amended by Instruments No. 31 of 2002 and No. 58 of 2003 but those amendments are not relevant to this review.
4. The initial claim upon the respondent was to associate cigarette smoking with CVA but the review before this Tribunal concerned an association only between service and alcohol consumption.
5. The relevant factor within Instrument No. 53 of 1999 is 5(e), namely:
(e)regularly consuming an average of 300g/week of alcohol (contained within alcoholic drinks), for a continuous period of at least one year immediately before the clinical onset of cerebrovascular accident.
6. The words “alcohol (contained within alcoholic drinks)” is defined at paragraph 8 of the Instrument as the measure “by the alcohol consumption calculations utilising the Australian Standard of 10 grams of alcohol per standard alcoholic drink”.. By reason of that definition, and by reason also of the average quantity of alcohol to be consumed in order to meet factor 5(e), the applicant would need to have consumed, daily, an average of between four and five, seven ounce glasses of beer in the one year period immediately before the clinical onset of CVA. For the purposes of these proceedings the applicant was diagnosed on 14 July 1988 as presenting with a “mild left hemiplegia” which I am satisfied was the occasion of clinical onset of the CVA (refer file of Dr Lyons at page 77).
7. Mr Clarke has the condition of bladder cancer accepted as war-caused. The rejected disabilities are CVA, cerebral ischaemia and cataract.
8. It is not in dispute that the cerebral ischaemia amounts to CVA. Paragraph 2 of Instrument No. 53 of 1999 records that for the purposes of that Instrument “cerebrovascular accident” means cerebral ischaemia or intracerebral haemorrhage…….”.
9. Mr Clarke enlisted in the Royal Australian Air Force on 19 February 1943 and was discharged on 26 March 1944 in order to return to a reserved occupation. His service was entirely within Australia and the applicable standard of proof for these proceedings is balance of probabilities.
10. There are two principle issues, namely, the association between service and consumption of alcohol and whether the requisite minimum quantity of alcohol was consumed.
11. The hearing was convened in Wangaratta on 25 November 2003. Mr Moore of Counsel appeared on behalf of Mr Clarke and Mr Douglass appeared on behalf of the respondent. A number of documents were received into evidence and will be referred to in these reasons. The applicant, Mr Clarke, and his son gave evidence.
LEO MICHAEL CLARKE
12. Mr Clarke is presently 79 years of age having been born on 6 August 1924. He was born in Deniliquin in New South Wales and attended school to the age of 12 years. He obtained employment as a log handler and hauler and at the age of 16, he and his family moved to Yarrawonga in northern Victoria. He continued working as a log hauler and later with a saw mill company.
13. Upon discharge from service he returned to the timber industry but ultimately became self-employed as an earth moving contractor until his retirement in 1988 when he suffered the CVA.
14. Prior to enlistment Mr Clarke said that he did not smoke cigarettes or drink alcohol. He was engaged with the RAAF as an aircraft handler and worked at a number of locations around Australia principally at Lakes Entrance, Laverton, Dubbo, Batchelor and in Darwin. He said he commenced to drink alcohol in mid-1943 when he was located at Dubbo. Prior to that time he said he had “no desire” to drink alcohol but at Dubbo he was found to be AWOL and was confined to barracks for seven days. Part of his confinement was to work in the camp kitchen. He recalled that there was a celebratory send off for a commanding officer and during or at the completion of food preparations, other senior enlisted persons and NCO’s made available a quantity of beer as a reward, which was shared amongst kitchen staff. Mr Clarke was offered beer by other persons. He said that he initially resisted it but ultimately he felt under pressure to accept the beer and decided that it was “worth trying”. He also recalled that it was provided to him without cost. He recalled that it tasted “all right” and on the weekend after his detention had expired, he attended a local hotel with other service personnel. Thereafter Mr Clarke said that he developed a lifelong habit of beer consumption.
15. He said that after he was discharged from service he only drank alcohol occasionally when engaged as a log hauler because there were frequent times when he was “in the bush”. Later, when he became a self-employed earth moving contractor, he said that he was drinking beer on six or seven days per week at hotels in Yarrawonga and at an RSL club in Mulwala in southern New South Wales. Mr Clarke said that he ultimately increased his alcohol consumption, and in the period of 12 months immediately before he was diagnosed with suffering from a CVA, he was drinking seven days per week, after work and after his evening meal, and estimated that he was consuming an average of ten, seven ounce glasses of beer daily.
16. Mr Clarke was referred to a number of documents which demonstrated an apparent inconsistency in the histories that he has given concerning his alcohol consumption. In the T-documents at pages 19 and 20 a welfare officer on his behalf recorded that from 1943 he had been consuming an average of between three and four stubbies of beer daily. At page 53 of the T-documents another RSL officer recorded that he was then drinking between three and four, seven ounce glasses of beer per day. In his statement prepared by his solicitors and lodged in these proceedings dated 4 February 2003 (Exhibit B), Mr Clarke records that he was drinking six glasses of beer daily after he was discharged from service.
17. In cross-examination Mr Clarke confirmed that despite being engaged in heavy, arduous manual labour prior to enlistment, he was not “pressured” into drinking alcohol despite working in the presence of men who did consume alcohol. He was adamant that he did not drink any alcohol prior to enlistment. He said he commenced drinking when he was stationed at Dubbo in New South Wales in mid-1943.
18. Mr Clarke was then taken to the various references in the documents lodged where his alcohol consumption had been noted and recorded. He agreed that an extensive file lodged by his local medical officer (“LMO”) does not contain any references to alcohol consumption or any illnesses or accidents associated with it. He was referred to pages 20, 33, 40, 58, 71, 87 and 109 of the Wangaratta Hospital file which record him as having given a history of very moderate alcohol consumption variously described (in terms of quantity) as either “nil”, “stubby – alternate days”; “1-2 day”; “some”; “occasionally”. The note at page 33 records “daily drink (beer)”.. Whilst the dates of these entries are all subsequent to the clinical onset of CVA, and being a point in time when Mr Clarke had said in evidence that he was consuming light beer and had reduced his consumption, Mr Douglass pointed to these histories as showing a continuing inconsistency in the history given by Mr Clarke over the years of his alcohol consumption.
19. Mr Clarke said that prior to discharge he had been located at Ascot Vale in suburban Melbourne where he was drinking beer on a weekly basis but could not recall quantities. By the 1950’s and when he was in self-employment he said that he had greater and easier access to beer and greater income. In the 1950’s he estimated he was drinking ten glasses of beer per day. Later he said that he and others would drink beer in Yarrawonga until 6pm when hotels closed. They would then drive across the border into Mulwala in New South Wales and drink beer at an RSL club which had extended opening hours. Despite the history that he was providing at the hearing of alcohol consumption, Mr Clarke could not explain why his advocate at the VRB confined the appeal associating CVA with service by cigarette consumption only. Mr Clarke said that his advocate at the VRB did not discuss SOPs with him nor was he asked whether he had consumed alcohol (VRB transcript, page 5).
20.
When Mr Clarke was taken to his statements at pages 19, 20 and 53 of the
T-documents and his statement of 4 February 2003, each giving a different history of alcohol consumption, Mr Clarke said that he “did not want to be seen to be drinking heavily” and he “wanted to give a minimum”. When pressed on this issue he said “I only wanted to minimise – I understood advice from other persons that this is what I had to do”. He said that he could not recall giving his solicitor instructions to record in his statement that he was then drinking six glasses of beer per day. Whilst he acknowledged that he had not ever met his solicitor, he did agree that he signed the statement. When he was asked whether he understood that a declaration he made on 12 September 2001 might expose him to penalties “for knowingly making false or misleading statements” (T-documents, page 21), Mr Clarke said that he “didn’t realise my declaration was important”.
JOHN MICHAEL CLARKE
21. Mr Clarke is the eldest son of the applicant. He is presently 53 years of age. His evidence, being a history of alcohol consumption by his father, was vastly different to the evidence heard earlier in the proceedings. He spoke of his family rarely having a meal together because his father was drinking beer at either a local hotel or at the RSL club in Mulwala. He spoke of his father drinking alcohol on a daily basis to 6pm at night when hotels closed in Yarrawonga and then driving to the RSL club in Mulwala where more beer was consumed until about 8pm. He said his father would then drive home, have an evening meal, and frequently would return to the RSL club to again consume beer. He said there were occasions when his father would drink beer until 11pm or 12pm at night and on these occasions he estimated that his father would have had a blood alcohol content approaching .2%. He said his father would rise at about 6am most days and would be hung over most mornings. He also gave evidence of his father drinking beer at lunchtimes and on weekends and said that his father had “huge sessions” of beer drinking. He recalled that his mother and father would travel to the RSL club on occasions where he and his younger brothers and sisters would wait (and sleep) in a motor car parked outside. He said that his mother did not drink but attended the RSL club with his father where she played with poker machines. He said that his father had a routine of “work, pub and club”. He could not recall his family ever having a holiday and his memory of his father was of a person who’s life revolved around working and drinking at hotels and at the RSL club.
22. In cross-examination Mr Clarke was unable to explain how his father was able to drink the quantities of alcohol that he did and yet be able to work daily and operate earth moving machinery. He acknowledged that his history of his father’s alcohol consumption was very different to the history that we heard from the applicant. He said his father would probably have been embarrassed about his drinking habit and would have been loath to volunteer it. He also acknowledged that his father “probably told a few fibs” when being asked to recall and describe his alcohol consumption. He said that it was his belief that his father would not have understood that the quantity of alcohol consumed was a “problem”.
CONCLUSIONS AND REASONS FOR DECISION
23. I am satisfied and find as a fact that:
i)The applicant underestimated or minimised the extent of his alcohol consumption; and
ii)The evidence of the applicant’s son as to the alcohol consumption by his father is to be preferred; and
iii)The applicant does satisfy the SOPs with respect to the quantity of alcohol consumed.
24. Differing explanations were given by Mr Clarke of the inconsistencies in the histories he provided from time to time of alcohol consumption. Whilst his intellectual capacity (with respect) was affected by the CVA that he suffered, it is difficult to comprehend that he did not understand that the declaration that he made on 12 September 2001 was not important (refer paragraph 20 earlier).
25. It is not uncommon in veterans’ applications in this Tribunal to hear histories from veterans of an alcohol habit which has been minimised or denied. Often the explanation given – either by a veteran or a family member – is that the veteran was embarrassed and did not comprehend that there would ultimately be an examination of the amounts of alcohol consumed or the frequency of consumption. I prefer this explanation in the present application. I note that Mr Clarke did say that he “did not want to be seen to be drinking heavily” and preferred to “give a minimum” when asked to record from time to time his alcohol consumption (refer paragraph 20). I note also the lengthy relationship between Mr Clarke and his LMO local medical officer contains no reference at all to alcohol consumed. It appears also that the alcohol consumed as understood by the Wangaratta Hospital was understated.
26. I was impressed by the evidence of the applicant’s son, Mr John Clarke. He was unrestrained in expressing his disappointment of his father’s absence most nights (because he was located at a hotel drinking alcohol). He also had a distinct recollection of the quantities of alcohol consumed by his father. I believe that Mr John Clarke is a witness of truth and who was courageous in giving his evidence having regard to his relationship to the applicant in these proceedings.
27. It therefore follows from these findings of fact that the minimum quantities of alcohol as found in the applicable SOP were consumed.
28. The remaining issue is causation.
29. In Re Cole and Repatriation Commission [2004] AATA 3 Mr Fice and I examined the applicable case law with respect to s 8(1)(b) and s 9(1)(b) of the Veterans’ Entitlements Act 1986 (“the Act”). That application involved the association between cigarette smoking and a CVA suffered by a veteran engaged in eligible service. We referred to the Federal Court decision of Repatriation Commission v Law (1980) 31 ALR 140 and Repatriation Commission v Tuite (1993) 29 ALD 609.
30. We noted that the expression “attributable to” involved some element of causation which did not need to be the sole or dominant cause. A contributing cause was sufficient.
31. Additionally, the eligible service must contribute in a causal way encompassing not only active service but other incidents of service such as life in camp. We noted from the Federal Court decision in Tuite that the enquiry into causation will concern “whether life in camp was a contributing cause and not merely the setting in which the event occurred”.
32. In the application brought by Mr Cole we found that he commenced cigarette smoking in service. He was a young male person placed into the company of adult males where cigarettes were available at a minimal cost and were shared. It was expected that he smoke cigarettes from peer pressure and was at risk of being isolated if he did not smoke cigarettes. He was exposed to demands of superiors which he found shocking and beyond his expectation and some aspects of training caused him to panic. He also learnt that another trainee had died during a training exercise. He was subjected to verbal abuse and he was apprehensive. Additionally during his training period, enemy submarines had been detected in Sydney Harbour, an Australian boat had been torpedoed, the United States occupied an air base at Bankstown and there was much discussion on radio and newspapers about the state of the war.
33. The present application was initially put to the Repatriation Commission (“the Commission”) by associating the CVA with cigarette smoking. Indeed the applicant’s advocate at the VRB submitted that the applicant could not satisfy any of the factors under the applicable SOPs other than the factor concerning cigarette consumption. The present review concerned an association between service and CVA by alcohol consumption where the focus of the pre-hearing preparation and the presentation at hearing was upon the amounts of alcohol consumed. Little attention was given to whether the alcohol consumed arose out of or was attributable to service.
34. In his application to the VRB Mr Clarke did complete an alcohol questionnaire received on 14 September 2001 (T7 p19/20). In response to the question “Do you consider that your alcohol consumption was due to or contributed to by your service?” Mr Clarke replied “Before I joined the Air Force I did not drink. The only reason for drinking alcohol was state of war, change of environment, new friends etc.”.
35. In a letter completed by Mr Clarke on 13 February 2002 (T15 p53) he recorded “I drink 3 to 4 7oz glasses every day. This continued the whole time I was in the Forces. I drank the same amount (habit) before joining I did not drink at all. The reasons I started was because I was placed on a misconduct charge and was given a sentence of confined to barracks. This was due to me being “absent without leave”. I was given 7 days no pay – and told to work in the kitchens – the only pay available to me was beer. So I then started to drink”.
36. In a statement completed by the applicant’s solicitors and received into evidence as Exhibit B Mr Clarke in part recorded:
I had my first drink of alcohol ever when [sic] in about mid 1943 whilst I was based at Dubbo I worked in the kitchen during a function to farewell the Commanding Officer. I had never previously consumed alcohol. We were given free beer in the kitchen at the function. I found that I enjoyed drinking the beer and continued to consume it thereafter. There was pressure from other men to drink and I came to enjoy drinking with them.
I started drinking regularly from my service in Dubbo and came to drink basically on a daily basis. . . .
37. Whilst I accept that the applicant commenced drinking alcohol in service which thereafter became habitual this case does not have the features that were found in the Cole review (refer paragraph 32) or in many other cases where particular events, features and circumstances of service are put forward as an explanation for the commencement of attributing or establishing that alcohol consumption arose out of service.
38. Mr Clarke said in his letter of February 2002 that he drank alcohol daily throughout the “whole time” that he “was in the Forces”.. This is not so. He enlisted in February 1943 but did not commence to drink alcohol until July 1943 when he was at Dubbo. He was therefore engaged in service for approximately five months before he commenced to drink alcohol. There was no evidence in that period of time of the applicant’s exposure to or inability to resist peer pressure. There is no evidence of the plentiful supply of alcohol either by ration or by reduced cost. Nothing is known about the applicant’s recruit training or his initial service and it is not possible to infer or assume that there were features of service which caused him stress or anxiety or apprehension which in turn caused him to resort to alcohol as a relaxant. There is nothing known about whether the applicant was bored which is sometimes advanced as a cause for taking up a habit which eventually becomes habitual (for example, cigarettes or alcohol).
39. The applicant did explain in his questionnaire of September 2001 that the “state of the war” was the reason for consuming alcohol but the “state of the war” as was subjectively experienced by the applicant is not known. The applicant was engaged in service within Australia only and was not exposed to conflict.
40. The applicant first commenced to drink alcohol in July 1943 at Dubbo. He explained that he had previously been found guilty of AWOL and had been confined to barracks for seven days. Part of his punishment was to work in the base kitchen where alcohol was provided to kitchen personnel one evening by superior officers as a reward. It was not routinely provided and I reject the comments made by the applicant in his letter of 13 February 2002 (T15) that “the only pay available to me was beer”.. This comment is inconsistent with his own statement of 4 February 2003 and his questionnaires at page 20 of the T-documents.
41. It may be thought difficult to resist the suggestion put by the applicant in his letter of 13 February 2002 that but for being punished and placed in the base kitchen he would not have commenced his alcohol habit. This may be thought inconsistent with the commencement of consumption of alcohol being attributable to or arising out of service (that is a contributing cause) as opposed to “the setting in which the event occurred” (refer Tuite).
42. On balance and by recognising and affirming the beneficial nature of veterans’ review, I am satisfied that there is a causal relationship between service and consumption of alcohol. A combination of factors which I am satisfied as a fact existed lead me to this conclusion namely:
· alcohol was first consumed during service;
· it was initially refused but Mr Clarke succumbed by pressure from others;
· it was offered to him by his superiors as a reward for work in the camp kitchen;
· there was a “change of environment” (refer paragraph 34) either being the movement from being a civilian to an enlisted person or from aircraft handling into the kitchen, both circumstances having an association with service;
· Mr Clarke enjoyed drinking the beer on the first occasion, he continued to consume it and enjoyed drinking with other service personnel on later occasions (refer statement 4 February 2003).
43. When the above factors are considered, there is more than a temporal connection with service. I am satisfied that the connection is causal. The applicant’s life in camp was not “merely the setting in which (drinking) occurred” (refer Tuite).
44. In the circumstances the decision under review is set aside and it is decided that CVA is war-caused. The application is remitted to the respondent for calculation of pension entitlement.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr J Handley, Senior MemberSigned: Holly Weston
AssociateDate of Hearing 25 November 2003
Date of Decision 23 January 2004
Counsel for the Applicant Mr G Moore
Solicitor for the Applicant Williams Winter
Departmental Advocate Mr R Douglass
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