Codd and Repatriation Commission
[2008] AATA 1177
•19 November 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1177
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V200500662
VETERANS' APPEALS DIVISION ) Re KATHLEEN MARY CODD Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Justice PRA Gray, Presidential Member
Miss EA Shanahan, MemberDate19 November 2008
PlaceMelbourne
Decision The Tribunal’s decision is that:
1.The decision of the Veterans’ Review Board made on 10 October 2002 be set aside.
2.There be substituted for that decision a decision that the applicant is entitled to pension, pursuant to the Veterans’ Entitlements Act 1986 (Cth), as the dependant widow of Ronald Kevin Codd, who died on 7 December 1968, and whose death was war-caused.
(sgd) PRA GRAY
Presidential Member
VETERANS’ AFFAIRS – widow’s pension – veteran killed in road accident – kind of death – whether death was caused by consumption of alcohol – hypothesis advanced connecting veteran’s death with a habit of heavy drinking developed as a result of operational service
Defence Act 1903 (Cth) s 30
Veterans’ Entitlements Act 1986 (Cth) ss 5B(1), 5C(1), 6A(1) item 1(a), 7(1)(a), 8(1), 11(1)(c), 13(1), 14, 119, 120, 120A, 120B, 196B(1), 196B(2), 196B(3)
Statement of Principles concerning alcohol dependence and alcohol abuse No. 76 of 1998
Statement of Principles concerning alcohol dependence and alcohol abuse No. 17 of 2008
Benjamin v Repatriation Commission [2001] FCA 1879 (2001) 70 ALD 622
Re Codd and Repatriation Commission [2004] AATA 876
Re Codd and Repatriation Commission [2006] AATA 905
Lees v Repatriation Commission [2002] FCAFC 398 (2002) 125 FCR 331
Mines v Repatriation Commission [2004] FCA 1331 (2004) 86 ALD 62
Preston v Repatriation Commission (1993) 45 FCR 214
Repatriation Commission v Budworth [2001] FCA 1421 (2001) 116 FCR 200
Repatriation Commission v Codd [2005] FCA 888
Repatriation Commission v Codd [2007] FCA 877
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton [2001] FCA 1194 (2001) 110 FCR 321
Repatriation Commission v Gosewinckel [1999] FCA 1273 (1999) 59 ALD 690
Repatriation Commission v Hancock [2003] FCA 711 (2003) 37 AAR 383
Repatriation Commission v Keeley [2000] FCA 532 (2000) 98 FCR 108
Repatriation Commission v Smith (1987) 15 FCR 327Shelton v Repatriation Commission [1999] FCA 181 (1999) 85 FCR 587
REASONS FOR DECISION
19 November 2008
Justice PRA Gray, Presidential Member
Miss EA Shanahan, MemberTHE NATURE AND HISTORY OF THE PROCEEDING
1. The applicant in this proceeding, Kathleen Mary Codd, has applied for a widow’s pension, pursuant to the Veterans’ Entitlements Act 1986 (Cth) (“the VE Act”). Mrs Codd is the widow of Ronald Kevin Codd (“the deceased”), who died on 7 December 1968 when the passenger train from Albury to Melbourne, known as the Spirit of Progress, collided with the truck the deceased was driving for his employer, the Country Roads Board (“the CRB”), at the Witt Street level crossing in Benalla. The principal issue in the proceeding is whether the deceased’s death was war‑caused. For a number of reasons, including the paucity of evidence about a number of matters, and the complexity of the relevant provisions of the VE Act and the authorities in which those provisions have been construed, the case is a highly complex one.
2. Mrs Codd first made a claim for a pension under the then Repatriation Act 1920 (Cth) in December 1968. The claim was rejected. She made a second claim under the same earlier Act in May 1985. Again, the claim was rejected. Mrs Codd’s current claim for a pension under the VE Act was lodged with the respondent, the Repatriation Commission (“the Commission”), on 30 March 2001. The Commission rejected this claim and its decision was affirmed by the Veterans’ Review Board on 10 October 2002. The board forwarded its reasons under cover of a letter dated 29 October 2002. Mrs Codd then sought review of that decision by this Tribunal. At that stage, a number of factors were identified as connected with the deceased’s war service and contributing to his death. These were: an anxiety condition said to contribute to impairment of concentration, lack of sleep, nightmares and restlessness; excessive alcohol consumption, contributing to an impairment of concentration; aggravation of pre-existing conditions of nystagmus (involuntary movement of the eyeballs) and involuntary jerking of the head to the right; and hypertension, which had been accepted as war-caused, and which was said to have caused the deceased to suffer from dizziness. The hypotheses advanced at that stage used various of these factors in different combinations. The Tribunal’s decision was to set aside the decision under review and to determine that the deceased’s death was war-caused. See Codd and Repatriation Commission [2004] AATA 876. At [65], the Tribunal found that it was satisfied on the balance of probabilities that the deceased suffered an anxiety condition that could be described as generalised anxiety disorder. The Tribunal also found that a hypothesis that included the propositions that the deceased’s disorder was the result of his experiences during his war service and that the disorder in turn impaired his concentration and contributed to the collision was consistent with the relevant statement of principles and therefore reasonable. The Tribunal held that it was not satisfied beyond reasonable doubt that the death was not war-caused.
3. That decision of the Tribunal was set aside by the Federal Court of Australia on 30 June 2005: Repatriation Commission v Codd [2005] FCA 888. At [46]-[47], Ryan J held that the Tribunal made an error of law in concluding that the deceased suffered from generalised anxiety disorder because an inference to that effect was not reasonably open to the Tribunal on the material before it and it was not implicit in the evidence that the deceased had manifested at least the minimum collection of symptoms constituting generalised anxiety disorder. At [49], his Honour also held that the Tribunal had failed to consider whether the hypothesis fitted the “template” to be found in the relevant statement of principles. His Honour remitted the matter to the Tribunal to be heard and determined according to law.
4. When the matter returned to the Tribunal, the hypothesis was advanced that the deceased’s alcohol habits were war-caused and the effects of alcohol impaired his concentration and contributed to the collision. The Tribunal found that the deceased met his death as a result of a road accident, that the hypothesis was reasonable, and accordingly that the deceased’s death was war-caused. See Codd and Repatriation Commission [2006] AATA 905. Again, the Commission appealed to the Federal Court. On 15 June 2007, the Court again set aside the Tribunal’s decision made on 24 October 2006 and remitted the matter to the Tribunal to be heard and determined according to law by a differently constituted Tribunal. See Repatriation Commission v Codd [2007] FCA 877. At [31]-[43], Gordon J held that the Tribunal had characterised the kind of death met by the deceased incorrectly. The hypothesis was not that death was by road accident, but that death arose out of, or was attributable to, alcohol dependence or alcohol abuse. Accordingly, the Tribunal ought to have tested the hypothesis against the statement of principles for alcohol dependence or alcohol abuse. At [44]-[51], her Honour held that, even if the involvement of alcohol was only part of the hypothesis, or a sub‑hypothesis, the Tribunal ought also to have tested that part, or that sub‑hypothesis, against the statement of principles, in order to determine its reasonableness.
5. Mrs Codd’s claim for a pension under the VE Act therefore falls to be determined by the Tribunal as presently constituted. For the purposes of this exercise, it should be understood that the fact that Mrs Codd has advanced a number of unsuccessful hypotheses in the past, in attempts to connect the death of the deceased with his war service, is not itself a reason to reject her claim on the current hypothesis. If Mrs Codd is entitled to succeed on the basis of the hypothesis now advanced, she is entitled to succeed. The fact that she only advanced that hypothesis at a late stage does not mean that it is not a valid hypothesis.
THE LEGISLATION
6. Section 13(1) of the VE Act provides relevantly:
Where:
(a)the death of a veteran was war-caused...
the Commonwealth is, subject to this Act, liable to pay:
(c)in the case of the death of the veteran—pensions by way of compensation to the dependants of the veteran...
in accordance with this Act.
7. To determine whether the death of a veteran was war-caused, it is necessary to have regard to the relevant provisions of s 8(1):
Subject to this section and section 9A, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
(a)the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
...
(d)in the opinion of the Commission, the death of the veteran was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran’s environment consequent upon his or her having rendered eligible war service;
...
but not otherwise.
8. Nothing else in s 8 of the VE Act, and nothing in s 9A, is of relevance to the circumstances of this claim. The phrase “operational service” is defined extensively in ss 6-6F. For present purposes, it is enough to have regard to item 1(a) of the table in s 6A(1), under which a person rendering continuous full-time service outside Australia during a war to which the VE Act applies, as a member of the Defence Force, is taken to have been rendering operational service during any period during which that person was rendering continuous full-time service of that kind. By s 5C(1), the phrase “member of the Defence Force” is defined to include a person appointed for continuous full-time service with a unit of the Defence Force. The phrase “unit of the Defence Force” is defined to mean a body, contingent or detachment of the Defence Force. “Defence Force” is given the same meaning as in the Defence Act 1903 (Cth), s 30 of which provides that the Defence Force consists of three arms, namely, the Australian Navy, the Australian Army and the Australian Air Force. Section 5C(1) of the VE Act defines “continuous full-time service” so as to include, in relation to a member of the Defence Force, service in the Military Forces of the Commonwealth of the kind known as continuous full-time military service. The phrase “war to which this Act applies” is defined in s 5B(1) as meaning World War 1 or World War 2 and World War 2 is defined to mean the war that commenced on 3 September 1939 and any other war in which the Crown became engaged after 3 September 1939 and before 3 September 1945. The term “Eligible war service” is defined at length in s 7 of the VE Act. For present purposes, it is sufficient to refer to s 7(1)(a), which provides that a person who has rendered operational service shall be taken to have been rendering eligible war service while rendering operational service. The word “dependant” is defined in s 11. By s 11(1)(c), a widow who has not remarried is a dependant of a veteran. Section 14 of the VE Act provides, among other things, for a dependant of a deceased veteran to make a claim for a pension, and for the form of the claim. Both ss 13 and 14 are found within Pt II of the VE Act.
9. Provisions concerning the manner of determination of claims are found in Pt VIII of the VE Act. The relevant provisions are as follows:
119(1)In considering, hearing or determining, and in making a decision in relation to:
(a)a claim...
the Commission:
(f)is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just;
(g)shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and
(h)without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:
(i)the effects of the passage of time, including the effect of the passage of time on the availability of witnesses and
(ii)the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities.
(2)In subsection (1):
...
claim means:
(a)a claim for a pension under Part II...
120(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.
...
(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.
(4)Except in making a determination to which subsection (1) or (2) applies the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
(5)Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:
(a)an injury suffered by a person is a war-caused injury or a defence-caused injury;
(b)a disease contracted by a person is a war-caused disease or a defence-caused disease;
(c)the death of a person is war-caused or defence-caused; or
(d)a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.
(6)Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a)a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b)the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.
...
120A(1) This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
...
(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person 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.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a)the kind of injury suffered by the person; or
(b)the kind of disease contracted by the person; or
(c)the kind of death met by the person;
as the case may be.
120B(1) This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the eligible war service (other than operational service) rendered by a veteran;
...
(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(3) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(3)In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b)there is in force:
(i)a Statement of Principles determined under subsection 196B(3) or (12); or
(ii)a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(3), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a)the kind of injury suffered by the person; or
(b)the kind of disease contracted by the person; or
(c)the kind of death met by the person;
as the case may be.
10. Part XIA of the VE Act contains provisions relating to the Repatriation Medical Authority (“the Authority”) and its functions. The relevant provisions are as follows:
196B(1) This section sets out the functions of the Repatriation Medical Authority. The main function of the Authority is to determine Statements of Principles for the purposes of this Act...
(2)If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a)operational service rendered by veterans; or
(b)peacekeeping service rendered by members of Peacekeeping Forces; or
(c)hazardous service rendered by members of the Forces; or
(ca)warlike or non-warlike service rendered by members;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d)the factors that must as a minimum exist; and
(e)which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.
(3)If the Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that a particular kind of injury, disease or death can be related to:
(a)eligible war service (other than operational service) rendered by veterans; or
(b)defence service (other than hazardous service) rendered by members of the Forces; or
(ba)peacetime service rendered by members;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(c)the factors that must exist; and
(d)which of those factors must be related to service rendered by a person;
before it can be said that, on the balance of probabilities, an injury, disease or death of that kind is connected with the circumstances of that service.
THE RELEVANT STATEMENT OF PRINCIPLES
11. The Authority has exercised its power under s 196B(3) of the VE Act to determine statements of principles in respect of alcohol dependence or alcohol abuse, and death from alcohol dependence or alcohol abuse on two occasions that may be relevant. At the time of the hearing of the proceeding by the Tribunal, the Statement of Principles concerning alcohol dependence and alcohol abuse No. 76 of 1998 (“the 1998 SoP”) was in force. Since the hearing, the 1998 SoP has been replaced by the Statement of Principles concerning alcohol dependence and alcohol abuse No. 17 of 2008 (“the 2008 SoP”). The relevant provisions of the 1998 SoP are in the following terms:
1.The Repatriation Medical Authority under subsection 196B(2) of the Veterans’ Entitlements Act 1986 (the Act):
(a)revokes Instrument No.5 of 1994 (Statement of Principles concerning psychoactive substance abuse or dependence); and
(b) determines in its place the following Statement of Principles.
Kind of injury, disease or death
2.(a) This Statement of Principles is about alcohol dependence or alcohol abuse and death from alcohol dependence or alcohol abuse.
(b)For the purposes of this Statement of Principles,
“alcohol dependence” means the presence of a constellation of cognitive, behavioural and physiological symptoms indicating the use of alcohol despite significant alcohol-related problems. The pattern of repeated self administration may result in tolerance, withdrawal and compulsive alcohol use behaviour.
The diagnostic criteria for alcohol dependence are those specified in DSM-IV, and are as follows:
A maladaptive pattern of alcohol use, leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same 12-month period:
(1) tolerance, as defined by either of the following:
(a)a need for markedly increased amounts of alcohol to achieve intoxication or desired effect
(b)markedly diminished effect with continued use of the same amount of alcohol
(2)withdrawal, as manifested by either of the following:
(a)the characteristic withdrawal syndrome for alcohol
(b)the same (or closely related) substance is taken to relieve or avoid withdrawal symptoms
(3)alcohol is often taken in larger amounts or over a longer period than was intended
(4)there is a persistent desire or unsuccessful efforts to cut down or control alcohol use
(5)a great deal of time is spent in activities necessary to obtain alcohol, use alcohol or recover from its effects
(6)important social, occupational or recreational activities are given up or reduced because of alcohol use
(7)alcohol use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by alcohol;
“alcohol abuse” means the presence of cognitive, behavioural or physiological symptoms indicating the use of alcohol despite significant alcohol‑related problems, however these symptoms have never met the criteria for alcohol dependence. Additionally, signs of tolerance or withdrawal are absent.
The diagnostic criteria for alcohol abuse are those specified in DSM-IV, and are as follows
A.A maladaptive pattern of alcohol use leading to clinically significant impairment or distress, as manifested by one (or more) of the following, occurring within a 12‑month period:
(1)recurrent alcohol use resulting in a failure to fulfil major role obligations at work, school, or home
(2)recurrent alcohol use in situations in which it is physically hazardous
(3)recurrent alcohol –related legal problems
(4)continued alcohol use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of alcohol B. The symptoms have never met the criteria for alcohol dependence.
The definitions for alcohol dependence and alcohol abuse exclude acute alcohol intoxication in the absence of alcohol dependence or alcohol abuse.
Alcohol dependence or alcohol abuse attracts ICD-9-CM code 303 or 305.0.
Basis for determining the factors
3.The Repatriation Medical Authority is of the view that there is sound medical‑scientific evidence that indicates that alcohol dependence or alcohol abuse and death from alcohol dependence or alcohol abuse can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.
Factors that must be related to service
4.Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person’s relevant service are:
(a)suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or
(c)suffering from a psychiatric disorder at the time of the clinical worsening of alcohol dependence or alcohol abuse; or
(d)experiencing a severe stressor within the two years immediately before the clinical worsening of alcohol dependence or alcohol abuse; or
(e)inability to obtain appropriate clinical management for alcohol dependence or alcohol abuse.
Factors that apply only to material contribution or aggravation
6.Paragraphs 5(c) to 5(e) 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; paragraph 8(1)(e), 9(1)(e), 70(5)(d) or 70(5A)(d) of the Act refers.
Inclusion of Statements of Principles
7.In this Statement of Principles if a relevant factor applies and that factor includes an injury or disease in respect of which there is a Statement of Principles then the factors in that last mentioned Statement of Principles apply in accordance with the terms of that Statement of Principles.
Other definitions
8.For the purposes of this Statement of Principles:
“death from alcohol dependence or alcohol abuse” in relation to a person includes death from a terminal event or condition that was contributed to by the person’s alcohol dependence or alcohol abuse;
“DSM-IV” means the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders;
“experiencing a severe stressor” means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i)threat of serious injury or death; or
(ii)engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;
“ICD-9-CM code” means a number assigned to a particular kind of injury or disease in the Australian Version of The International Classification of Diseases, 9th revision, Clinical Modification (ICD-9-CM), effective date of 1 July 1996, copyrighted by the National Coding Centre, Faculty of Health Sciences, University of Sydney, NSW, and having ISBN 0 642 24447 2;
“psychiatric disorder” means any Axis 1 or 2 disorder of mental health attracting a diagnosis under DSM IV;
“relevant service” means:
(a)operational service; or
(b)peacekeeping service; or
(c)hazardous service;
“terminal event” means the proximate or ultimate cause of death and includes:
a)pneumonia;
b)respiratory failure;
c)cardiac arrest;
d)circulatory failure; or
e)cessation of brain function.
Application
9.This Instrument applies to all matters to which section 120A of the Act applies.
12. The relevant provisions of the 2008 SoP are in the following terms:
Determination
2.The Repatriation Medical Authority under subsection 196B(2) and (8) of the Veterans’ Entitlements Act 1986 (the VEA):
(a)revokes Instrument No. 76 of 1998 concerning alcohol dependence or alcohol abuse; and
(b)determines in its place this Statement of Principles.
Kind of injury, disease or death
3.(a) This Statement of Principles is about alcohol dependence and alcohol abuse and death from alcohol dependence and alcohol abuse.
(b)For the purposes of this Statement of Principles:
“alcohol dependence” means a psychiatric condition that meets the following diagnostic criteria (derived from DSM-IV-TR):
A maladaptive pattern of alcohol use, leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same 12-month period:
(1)Tolerance, as defined by either of the following:
(a)a need for markedly increased amounts of the alcohol to achieve intoxication or desired effect; or
(b)markedly diminished effect with continued use of the same amount of the alcohol.
(2)Withdrawal, as manifested by either of the following:
(a)the characteristic withdrawal syndrome for the alcohol; or
(b)the same (or a closely related) alcohol is taken to relieve or avoid withdrawal symptoms.
(3)The alcohol is often taken in larger amounts or over a longer period than was intended.
(4)There is a persistent desire or unsuccessful efforts to cut down or control alcohol use.
(5)A great deal of time is spent in activities necessary to obtain the alcohol (e.g., visiting multiple doctors or driving long distances), use the alcohol or recover from its effects.
(6)Important social, occupational, or recreational activities are given up or reduced because of alcohol use.
(7)The alcohol use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by the alcohol (e.g., continued drinking despite recognition that an ulcer was made worse by alcohol consumption).
“alcohol abuse” means a psychiatric condition that meets the following diagnostic criteria (derived from DSM-IV-TR):
A.A maladaptive pattern of alcohol use leading to clinically significant impairment or distress, as manifested by one (or more) of the following, occurring within a 12-month period:
(1)Recurrent alcohol use resulting in a failure to fulfil major role obligations at work, school, or home (e.g., repeated absences or poor work performance related to alcohol use; alcohol-related absences, suspensions, or expulsions from school; neglect of children or household).
(2)Recurrent alcohol use in situations in which it is physically hazardous (e.g., driving an automobile or operating a machine when impaired by alcohol use).
(3)Recurrent alcohol-related legal problems (e.g., arrests for alcohol-related disorderly conduct).
(4)Continued alcohol use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of the alcohol (e.g., arguments with spouse about consequences of intoxication, physical fights).
B.The symptoms have never met the criteria for alcohol dependence.
The definitions for alcohol dependence and alcohol abuse exclude acute alcohol intoxication in the absence of alcohol dependence or alcohol abuse.
Basis for determining the factors
4.The Repatriation Medical Authority is of the view that there is sound medical‑scientific evidence that indicates that alcohol dependence or alcohol abuse and death from alcohol dependence or alcohol abuse can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces under the VEA, or members under the Military Rehabilitation and Compensation Act 2004 (the MRCA).
Factors that must be related to service
5.Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
Factors
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:
(a)having a clinically significant psychiatric condition at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b)experiencing a category 1A stressor within the five years before the clinical onset of alcohol dependence or alcohol abuse; or
(c)experiencing a category 1B stressor within the five years before the clinical onset of alcohol dependence or alcohol abuse; or
(d)experiencing the death of a significant other within the two years before the clinical onset of alcohol dependence or alcohol abuse; or
(e)having a clinically significant psychiatric condition at the time of the clinical worsening of alcohol dependence or alcohol abuse; or
(f)experiencing a category 1A stressor within the five years before the clinical worsening of alcohol dependence or alcohol abuse; or
(g)experiencing a category 1B stressor within the five years before the clinical worsening of alcohol dependence or alcohol abuse; or
(h)experiencing the death of a significant other within the two years before the clinical worsening of alcohol dependence or alcohol abuse; or
(i)inability to obtain appropriate clinical management for alcohol dependence or alcohol abuse.
Factors that apply only to material contribution or aggravation
7.Paragraphs 6(e) to 6(i) 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.
Inclusion of Statements of Principles
8.In this Statement of Principles if a relevant factor applies and that factor includes an injury or disease in respect of which there is a Statement of Principles then the factors in that last mentioned Statement of Principles apply in accordance with the terms of that Statement of Principles as in force from time to time.
Other definitions
9.For the purposes of this Statement of Principles:
“a clinically significant psychiatric condition” means any Axis 1 or Axis II disorder of mental health that attracts a diagnosis under DSM-IV-TR which is sufficient to warrant ongoing management. The ongoing management may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or general practitioner;
“a category 1A stressor” means one or more of the following severe traumatic events:
(a)experiencing a life-threatening event;
(b)being subject to a serious physical attack or assault including rape and sexual molestation; or
(c)being threatened with a weapon, being held captive, being kidnapped, or being tortured;
“a category 1B stressor” means one of the following severe traumatic events:
(a)being an eyewitness to a person being killed or critically injured;
(bviewing corpses or critically injured casualties as an eyewitness;
(c)being an eyewitness to atrocities inflicted on another person or persons;
(d)killing or maiming a person; or (e) being an eyewitness to or participating in, the clearance of critically injured casualties;
“a significant other” means a person who has a close family bond or a close personal relationship and is important or influential in one’s life;
“an eyewitness” means a person who observes an incident first hand and can give direct evidence of it. This excludes a person exposed only to media coverage of the incident;
“death from alcohol dependence or alcohol abuse” in relation to a person includes death from a terminal event or condition that was contributed to by the person’s alcohol dependence or alcohol abuse;
“DSM-IV-TR” means the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision. Washington, DC, American Psychiatric Association, 2000;
“relevant service” means:
(a)operational service under the VEA;
(b)peacekeeping service under the VEA;
(c)hazardous service under the VEA;
(d)warlike service under the MRCA; or
(e)non-warlike service under the MRCA;
“terminal event” means the proximate or ultimate cause of death and includes:
(a)pneumonia;
(b)respiratory failure;
(c)cardiac arrest
(d)circulatory failure; or
(e)cessation of brain function.
Application
10.This Instrument applies to all matters to which section 120A of the VEA or section 338 of the MRCA applies.
Date of effect
11.This Instrument takes effect from 5 March 2008.
THE AUTHORITIES
13. The proper approach to the determination of a claim for a pension in respect of a veteran who has rendered operational service was laid down by the Full Court of the Federal Court of Australia in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98. There, the Full Court set out the four steps that a decision-maker is required to take, following the enactment of ss 120A and 120B of the VE Act:
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.
14. The Full Court in Deledio did not consider whether there might be any step antecedent to the first of these four steps. This may have been because, as appears in Deledio at 83, certain facts were not disputed before the Tribunal in that case. These included the facts that Mr Deledio had rendered service during World War 2, including operational service, that he was first diagnosed with carcinoma of the prostate in 1994 and that this condition was a cause of his death later that year. It has since been recognised that the four steps in Deledio constitute a process of determining whether there is a causal connection between war service on the one hand and a disease or injury suffered by a veteran who is still alive, or the death of a deceased veteran, on the other. Before this process is undertaken, it is necessary for the decision-maker to find that the requisite facts exist. Whether or not there is a dispute, the decision-maker needs to make findings that the relevant person is or was a veteran, who rendered service of the requisite kind, so as to give rise to an entitlement to a pension, and that, if alive, the veteran suffers or has suffered from a particular disease or injury, or that the veteran is dead and is survived by a dependant or dependants.
15. Subject to one qualification, dealt with below, it is clear that the decision‑maker’s task is to determine these facts by reference to the standard of reasonable satisfaction, laid down in s 120(4) of the VE Act, and not by reference to the reasonable doubts standard referred to in s 120(3). See Repatriation Commission v Cooke (1998) 90 FCR 307 at 310-312, overruling Preston v Repatriation Commission (1993) 45 FCR 214, Repatriation Commission v Budworth [2001] FCA 1421 (2001) 116 FCR 200 at [14]-[17], Benjamin v Repatriation Commission [2001] FCA 1879 (2001) 70 ALD 622 at [52]-[58], Repatriation Commission v Gosewinckel [1999] FCA 1273 (1999) 59 ALD 690 at [39]-[49], Repatriation Commission v Hancock [2003] FCA 711 (2003) 37 AAR 383 at [9] and Mines v Repatriation Commission [2004] FCA 1331 (2004) 86 ALD 62 at [37]-[52]. The standard of reasonable satisfaction prescribed by s 120(4) equates to the standard of proof, familiar to lawyers involved in civil cases, namely the balance of probabilities. See Repatriation Commission v Smith (1987) 15 FCR 327 at 335.
16. The qualification referred to in [14] above relates to the determination on the balance of probabilities of the question whether a veteran is suffering from a disease (or perhaps even an injury) when that determination might involve the very same question as would be involved if the decision-maker were considering whether a hypothesis connecting the disease with war service fitted the template in a statement of principles relating to the particular disease. Separating the question of the existence, or the characterisation, of a disease (and perhaps an injury) from its aetiology is sometimes difficult. For instance, statements of principles in respect of diseases such as alcohol dependence or alcohol abuse (the statements of principles relevant to the present case), post traumatic stress disorder (as in Mines) or anxiety disorder (also in Mines) commonly include among the criteria against which a hypothesis is to be assessed reference to an event that would constitute a possible cause of the disease, eg a “stressor”. The question is whether the decision-maker should determine as part of the preliminary process, applying the balance of probabilities standard, whether the veteran experienced such an event, or whether that issue belongs in the four-step Deledio process, as part of the hypothesis tested against the relevant statement of principles. If the former course were adopted, in a case to which s 120A applies, the result would be to render much, if not all, of the Deledio process a dead letter. It would have the effect of assimilating the case of a veteran who rendered operational service, to whom s 120A applies, with that of a veteran who did not render operational service, to whom s 120B (which requires that the decision-maker be satisfied on the balance of probabilities that a hypothesis is correct) applies. In that respect, it would be to rewrite the Act.
17. The solution to this problem adopted by the Federal Court is not to undertake such a full inquiry as to whether the veteran suffers from the particular disease as would involve the determination of the disease’s aetiology. Rather, the solution is to determine on the balance of probabilities whether the veteran is suffering from a collection of symptoms that would amount to the disease in question, if the crucial fact relevant to its aetiology were to have existed. See Budworth at [19] and Mines at [50].
18. It follows from these authorities, which bind the Tribunal, that in a case to which s 120A applies (ie a case in which the veteran rendered operational service), in which the decision-maker must determine whether the veteran is suffering from a disease, the decision-maker’s task is not to determine on the balance of probabilities whether the disease conforms with the template in the relevant statement of principles. Rather, the task is to determine whether the veteran suffers from a collection of symptoms that might amount to the disease in question, and whether there exists a hypothesis that fits the template in the relevant statement of principles, which is not found beyond reasonable doubt to be an untenable hypothesis. If it were necessary at the stage preliminary to the first step of the Deledio process to determine whether the veteran was suffering the disease that fitted the template in the relevant statement of principles in all respects, then a case involving operational service would be no different from a case to which s 120B of the VE Act applies, which does not involve operational service. The provisions of the VE Act therefore require that the somewhat more subtle process outlined in Benjamin and Mines be undertaken.
19. Section 120(1) and (3) both distinguish between incapacity from injury or disease on the one hand and death on the other. An examination of those provisions would suggest that, in a case involving the death of a veteran, the only relevant inquiry prior to embarking on the Deledio process would be whether the veteran is dead. Only the question of death would have to be determined on the balance of probabilities. With the enactment of s 120A and s 120B, came the introduction of the notion of a “kind of death”. It was the introduction of this notion that led Selway J in Hancock at [9] and [17] to regard determination of the kind of death suffered by the veteran as a preliminary step to the Deledio process in a case involving a deceased veteran who had rendered operational service. In the second Codd case at [31]-[43], Gordon J discussed the meaning of “kind of death” for this purpose. At [39], her Honour took the view that:
On the proper construction of the VE Act, consistent with its evident statutory purpose and existing authority, the “kind of death met by the [veteran]” that is to be considered is the question of medical causation or the kind of death, being a medical cause of death, including the contributing or underlying medical cause of death.
20. Her Honour went on to hold at [40] that the kind of death met by the deceased was not death by road accident but death from alcohol dependence or alcohol abuse. In accordance with previous authority, particularly the passages from Budworth and Mines referred to above, it cannot be the case that it is necessary to determine whether the deceased met his death as a result of alcohol dependence or alcohol abuse in the sense in which either of those diseases might fit the template in the relevant statement of principles. To adopt that approach would be to ignore s 120A of the VE Act, and to treat the case as one to which s 120B applied, ie. a case in which the deceased did not render operational service.
21. For these reasons, it is necessary for the Tribunal in the present case to determine on the balance of probabilities whether a significant causal factor in the deceased’s death was his consumption of alcohol, and whether that consumption was of a kind that might amount to alcohol dependence or alcohol abuse if, as it was hypothesised, it fitted the template in the relevant statement of principles. If the Tribunal reaches an affirmative conclusion on that question, the next question will be whether there is a hypothesis connecting the death with the deceased’s war service. If the material points to such a hypothesis, the Tribunal must follow the Deledio process in evaluating it. In stage three of that process, determining whether the hypothesis fits the template in the relevant statement of principles, it is necessary that there be material pointing to a hypothesis that fits every element required by the statement of principles. See Shelton v Repatriation Commission [1999] FCA 181 (1999) 85 FCR 587 at [4]-[7]. In the present case, in which the relevant statement of principles refers to “clinical onset”, it is necessary to have regard to the meaning of that phrase, as elucidated by authority. In Lees v Repatriation Commission [2002] FCAFC 398 (2002) 125 FCR 331 at [13]-[16], the Court held that “clinical onset” of a disease occurs either when a person becomes aware of some feature or symptom that enables a doctor to say the disease was present at that time, or when a finding is made on investigation that is indicative to a doctor of the disease being present.
THE UNCONTROVERSIAL FACTS
22. The deceased was born on 14 June 1923. According to his military records (part of the documents produced to the Tribunal pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth), and the researches of Barry Morgan on behalf of Writeway Research Service Pty Ltd, the deceased’s military history was as follows. He appears to have first enlisted on 8 October 1941 in the Citizen Military Force and then transferred to the Australian Imperial Force in October 1942. In March 1942, he was given a medical classification 2B, signifying that he was fit for any duty other than with field formations, but in October 1942 he was reclassified as 2A, meaning that he could be posted overseas. He was trained at the General Hospital, Heidelberg and transferred to a dental unit at Watsonia. On 7 May 1943, he was transferred from the Australian Army Medical Corps (Dental) to the Australian Army Dental Corps, which was by then recognised as a separate corps. He was deemed qualified and granted proficiency pay on 1 July 1943. From 7 March 1943 until 12 April 1944, he served in the Northern Territory. On 29 June 1944, he was transferred to the 2/4 Australian Dental Unit in Queensland. On 29 December 1944, he embarked on a vessel and disembarked on 3 January 1945 at Aitape in New Guinea. He served in the 2/4 Australian Dental Unit during the advance along the north coast of New Guinea from Aitape to Wewak in the latter stages of World War 2. Following the end of the war, he was graded Group 3 Dental Clerk Orderly on 16 November 1945. He was shipped back to Sydney in February 1946 and discharged at Royal Park on 9 August 1946. It is not disputed that the deceased rendered operational service within item 1 in the table in s 6A(1) of the VE Act.
23. After his discharge, the deceased returned to his family home at Tungamah in Victoria. Over the next few years, he lived either at Tungamah or at Benalla and worked as a bricklayer. He met the applicant in 1950 and they married in 1952. They had six children and were still married at the time of the deceased’s death. It is not disputed that the applicant is the deceased’s widow, and a dependant, within the definition in s 11(1)(c) of the VE Act.
24. It is also undisputed that the deceased is deceased. The documents in evidence include his death certificate and the record of proceedings at the inquest into his death.
25. The Tribunal is therefore satisfied on the balance of probabilities that the deceased was a veteran, who rendered operational service, and is now deceased. The applicant, Mrs Codd, is his widow and his dependant.
THE KIND OF DEATH
26. As is stated above, the issue for the Tribunal is whether it is satisfied, on the balance of probabilities, that the deceased’s excessive consumption of alcohol was a cause of his death. To determine that issue, it is necessary to have regard to a considerable amount of evidence before the Tribunal.
27. According to the evidence of First Constable Cowton of the Victoria Police at the inquest, the deceased had a driver’s licence, which was endorsed so that he could lawfully drive heavy vehicles of the kind he was driving on the morning of his death. The evidence of two of the deceased’s workmates at the time of his death, Reginald O’Connor and Brian Rogash, is that the deceased did a great deal of driving for his employer, the CRB. He was employed to assist in the servicing, repair and maintenance of vehicles used by the CRB for road making and repairing. According to Mr O’Connor, the deceased handled a lot of machinery, delivering machines to different camps and places and bringing back machines to be repaired. At the time of his death, he was working regularly as “offsider” to Mr Rogash, who was a motor mechanic. Their task was to travel together to where road gangs were working, to repair vehicles that the gangs were using in road construction or maintenance. Mr Rogash also described the deceased as a “spare parts driver”.
28. Mr O’Connor’s description of the deceased’s driving capabilities was that he was “a very good driver”, who was on the road all or most of the time, and as a “cautious driver”. Mr Rogash, who travelled with the deceased, described the deceased as driving “extra well” and added that he was as good as Mr Rogash, slower if anything. Mrs Codd only drove occasionally in a vehicle driven by her late husband, but described him as “a careful driver”.
29. On the morning of 7 December 1968, the deceased attended for work at the CRB depot in Samaria Road, Benalla, along with other CRB employees, including Mr O’Connor and a Mr Waters. Mr Rogash was also on duty there. Another CRB employee drove the deceased, Mr O’Connor and Mr Waters to another CRB depot in Gillies Street, Benalla, in a utility vehicle. Mr O’Connor and the deceased were in the back of the utility together, conversing on the way. At the Gillies Street depot were three vehicles, which the deceased, Mr O’Connor and Mr Waters were required to drive back to the Samaria Road depot, so that they could be serviced. The deceased went first in the bitumen sprayer, an articulated vehicle with a large tank and spraying unit on its trailer. Mr O’Connor followed in a smaller vehicle, the tender truck. Mr Waters followed in the tanker, after having some difficulty in starting it.
30. The route that the three vehicles were required to take involved driving in a generally northerly direction on Gillies Street and turning right into Saleyards Road. After crossing the railway line from Benalla to Yarrawonga, Saleyards Road branched in two directions, which linked up again on the other side of the saleyards. The three vehicles turned south, parallel to the Yarrawonga railway line, and then followed Saleyards Road around a left-hand corner, known as Piggery Corner, because it was adjacent to the piggery at the saleyards. According to the scale on a map tendered to the Tribunal, the distance along Saleyards Road from Piggery Corner to where Saleyards Road formed a T intersection with Witt Street was in excess of 800 metres. Approximately 300 metres from Piggery Corner, Saleyards Road has a slight kink to the left, as the trucks were travelling. From that point to where it meets Witt Street, Saleyards Road bears approximately 95 degrees, ie. five degrees south of due east. At the intersection with Witt Street, it was necessary for the trucks to turn right. The angle of the turn was approximately five degrees tighter than a right angle. In the direction in which the vehicles were heading, Witt Street’s bearing is approximately 190 degrees, ie. 10 degrees west of due south. South of what at that time was the Hume Highway, and is now the Benalla-Winton Road, Witt Street becomes Samaria Road. A short distance south of the intersection with Saleyards Road, Witt Street crosses the main railway line from Melbourne to Albury. Mr O’Connor’s estimate of the distance between Saleyards Road and the level crossing was about 30 yards, whereas the scale on the map tendered indicates that the distance is more like 40 yards. There were two sets of rail tracks, the original Victorian track with a gauge of five feet three inches and the standard gauge line, built in the early 1960s, of four feet, eight and a half inches. Travelling from Albury towards Melbourne, the bearing of the railway line at this point is approximately 245 degrees, ie. 25 degrees south of due west. There was a slight incline in Witt Street between the Saleyards Road intersection and the level crossing. At the time, apart from a static sign indicating the presence of a level crossing, there was no gate or warning device, to indicate the presence of the level crossing. The deceased was very familiar with the crossing, having driven the route a number of times before in similar circumstances.
31. Mr O’Connor said that, as he drove along Saleyards Road that morning, he was about 150 yards behind the deceased, but gaining on him. He estimated the deceased’s speed as approximately 25 mph and his own as approximately 30 mph. The train driver’s estimate of the deceased’s speed at that time, given in his evidence at the inquest, was approximately 30 mph. Mr O’Connor could recall seeing the deceased activate the right-hand indicator before he made his turn into Witt Street. Mr O’Connor is not now certain whether he saw the brake lights activated, or whether the deceased was slowing sufficiently to make the turn without braking. As he drove along Saleyards Road, Mr O’Connor could see clearly the Spirit of Progress approaching. It was not quite directly ahead of him. If the alignment of Saleyards Road is notionally extended beyond the Witt Street intersection, at a point where it would cross the railway line, the angle of the railway line to the road alignment is approximately 30 degrees to the left. Of course, because of the divergence of the two lines, it is not necessary to look anything like 30 degrees to the left of straight ahead when driving along Saleyards Road, in order to see an approaching train. There were trees and other vegetation along the left side of Saleyards Road, and also beyond the intersection with Witt Street. Photographs tendered at the inquest show a large tree that had been lopped prior to the taking of the photos (the date of which is unknown), just to the right of the line of vision directly ahead on Saleyards Road. Although the view of an approaching train would be obscured intermittently by vegetation, there was nothing that prevented Mr O’Connor from seeing the train on this particular morning when it was still a long way off.
32. Nor was there anything that prevented the train driver from seeing the vehicles approaching as the train approached the Witt Street level crossing. On that morning, the train was running later than its scheduled time. It had left Albury at 6.25 am and stopped briefly at Wangaratta. As it approached Benalla, it was travelling at 60 mph. A quarter of a mile from the level crossing was a static signal known as a whistle board. The driver sounded the mandatory two long blasts of the train’s siren. Because he could see vehicles approaching the level crossing, he continued to sound the siren, in a series of short blasts, in order to warn the vehicles of the approach of the train. As the photographs show, the locomotive was a large diesel locomotive. At the time, it had its headlight showing. Mr O’Connor could see this. He could also hear the siren as the train approached. At the time when the train passed the whistle board, the driver put the locomotive into idling mode, in order to lose a little speed before braking to stop at the Benalla Station. At the point of impact on the level crossing, the speed of the train was 59 mph. Accordingly, it took 15 seconds for the train to travel from the whistle board to the point of impact, during most of which time the driver was still sounding the siren.
33. It is apparent that the deceased neither saw nor heard the train at all. Before the collision, the deceased was clearly visible to the driver of the train in the cabin of the truck. The train driver described him as looking straight ahead. A witness who lived close to the scene of the collision told the inquest that she did not see any brake lights on the truck as it approached the level crossing on Witt Street.
34. The coroner’s verdict was that the deceased died from the effects of injuries accidentally sustained at the railway crossing when the vehicle driven by him came into collision with the train. The evidence before the inquest was that the collision occurred at 7.47 am.
35. Mrs Codd’s evidence was that, on the evening before he died, the deceased spent the evening away from home and returned home drunk. She said that she arrived home at approximately 9.00 pm, after finishing her work as a cleaner, and retired to bed. The deceased came home at about 10.30 pm and was drunk. He also went to bed, but became annoyed about a fly buzzing in the room. Mrs Codd had to get up and spray the fly to kill it. The deceased’s annoyance was said to be consistent with his demeanour when affected by alcohol. Mrs Codd was not able to observe in the morning whether the deceased was suffering from a hangover. At best, she saw him only briefly when he was in the kitchen and she passed through on her way to the toilet, and saw him riding his bicycle away from the house to begin work. She did say that it was normal for the deceased to suffer from hangovers when he had been drinking to excess. Neither Mr O’Connor nor Mr Rogash detected anything about the deceased that might have suggested the presence of a hangover. Mr O’Connor was certainly able to engage with him in conversation in the back of the utility, during the initial journey between depots.
36. The post-mortem examination involved the taking of samples of urine, blood from the inferior vena cava, and extravasated blood from the left pleural cavity, for alcohol assay. The alcohol content readings were 18 mg per 100 ml in the pleural cavity blood, 19 mg per 100 ml in the inferior vena cava and 43 mg per 100 ml in the urine. Professor Drummer, Head of Scientific Services at the Victorian Institute of Forensic Medicine, was asked to provide an expert opinion in relation to these alcohol levels. In his first report, dated 9 March 2006, Professor Drummer was under the misapprehension that the alcohol level in the pleural cavity was 43 mg per 100 ml and that no estimate of urinary alcohol level had been conducted. Professor Drummer’s opinion was that the level of alcohol found could have been due to fermentation occurring between the taking of the sample (on the day of death) and the subsequent testing, if neither preservative nor refrigeration was used to maintain the integrity of the samples. Professor Drummer’s evidence was that it was not the practice in 1968 to use a chemical preservative, and that refrigeration for the transport and storage of the samples may not have been used so as to be effective in preventing fermentation. Subsequently, Professor Drummer was advised that the alcohol level in the urine was 43 mg per 100 ml. In his second report, dated 28 March 2006, he advised that the levels could still be inaccurate, although fermentation of the urine sample would be less likely than of blood samples. Professor Drummer gave an opinion that, if accurate, the level of alcohol would be consistent with the consumption of 12 glasses of beer on the evening of 6 December 1968, or two glasses on the morning of death. It is unclear whether this opinion was given in relation to the actual quantities detected in the blood, or in relation to the assumption that the pleural blood alcohol was also 43 mg per 100 ml. In any event, Professor Drummer’s evidence does not refute Mrs Codd’s evidence that the deceased was drunk on the evening before he died. If the alcohol levels were wholly or partly the result of residual alcohol from the previous evening’s drinking, they would be consistent with the proposition that the deceased had consumed a considerable amount of alcohol on the previous evening. On the other hand, if the alcohol present was produced entirely by fermentation, it would be consistent with the proposition that the deceased had drunk alcohol on the eve of the collision, but had eliminated the alcohol from his system by the time of the collision. There is nothing to suggest that he had drunk any alcohol on the morning of his death, even though he was not under Mrs Codd’s constant observation after he arose in the morning. His colleagues did not detect any smell of alcohol on his breath while he was with them. The Tribunal is left with Mrs Codd’s evidence about what actually occurred, particularly her statement that the deceased was drunk the night before. Whilst this statement was not made at an early stage of the series of claims for pension that Mrs Codd has made, her legacy representative did explain in correspondence to a Dr Whitaker and in one hearing before the Veterans’ Review Board that Mrs Codd had been reluctant to reveal aspects of her late husband’s drinking habits because of the embarrassment that public knowledge of them caused to her. This proposition is consistent with Mrs Codd’s apparent reluctance, in giving evidence on 28 November 2007, to give emphatic accounts of the deceased’s drinking habits. She gave the impression that she did not wish to dishonour the memory of the man she said she had loved by dwelling on his use of alcohol.
37. There is no reason to disbelieve Mrs Codd’s statement that the deceased was drunk on the evening of 6 December 1968, when he arrived home at about 10.30 pm. This is the starting point of the attempt to determine whether excessive alcohol consumption was a cause of the deceased’s death.
38. Among the documents tendered to the Tribunal is a paper entitled “Alcohol Hangover Mechanisms and Mediators”, by Robert Swift and Dena Davidson, from the Department of Psychiatry and Human Behaviour at Brown University, Providence, Rhode Island and Indiana University of Medicine, Indianapolis, Indiana, respectively. This article refers to the scant nature of research about hangovers, and the lack of knowledge about the physiology underlying the hangover condition. According to the article:
investigators are uncertain about the degree to which hangover affects a person’s thinking and mentally controlled motor functions, a question with serious implications for activities such as job performance and driving.
39. In the course of the article, the authors point to apparently conflicting studies reporting, on the one hand, lack of impaired performance resulting from hangover on simulated automobile driving, and on the other hand, decrements in some performance measures of military pilots completing a simulated flying task between eight and 14 hours after they had consumed enough alcohol to be considered “legally drunk”. Dr Michael Epstein gave evidence to the Tribunal about the symptoms of a hangover, commonly headache, feeling of lethargy or fatigue, and sometimes problems with varying concentration and attention. Dr Lester Walton thought that a mild hangover might increase the alertness of a person suffering from it and make such a person hyper-vigilant. In his view, the relevant factor in mental and behavioural functioning is the concentration of alcohol in the brain at the material time, not the after effects of drunkenness.
40. It is clearly unlikely that any residual alcohol in the deceased’s system at the time of the collision itself caused him to behave as he did on approaching the level crossing. On any view, the level of residual alcohol was too low. The medical opinion is close to unanimous on that issue. On the other hand, Dr Epstein expressed the view that the effects of a hangover are most likely to manifest themselves at the time when residual alcohol in the body of a person who has consumed it is approaching and reaching the zero level.
41. In the course of evidence and submissions over the years, a number of possible reasons have been advanced for the failure of the deceased to be aware of the approaching train as he neared and entered the level crossing. It is necessary to examine each of these possible reasons in the light of such evidence as is available about the circumstances of the collision.
42. Reference has already been made to the presence of vegetation, particularly trees, on the left-hand side of Saleyards Road as the deceased and Mr O’Connor were proceeding. Mr Rogash’s evidence was that the vegetation was sufficient to block a long view, but he conceded that the view was blocked intermittently, not all the time. This concession accords with Mr O’Connor’s evidence, which was to the effect that trees only obscured his view of the oncoming train intermittently. As has already been said, having regard to the angle between Saleyards Road and the railway line, and the distance between Mr O’Connor’s vehicle and the train when he first saw the train, it was not necessary for him to look very far to the left of straight ahead in order to see the train. Whatever vegetation might have obstructed the view intermittently, Mr O’Connor saw the train, and saw it at a considerable distance.
43. It is clear that the deceased did not see the train at any stage. The evidence in support of this proposition is overwhelming. The most important item of the evidence is that of the train driver, given to the inquest, that he could see clearly the deceased looking straight ahead as he drove the truck onto the railway crossing. There is also the evidence of a local resident, given to the inquest, that she saw no brake lights operating on the truck as it travelled the short distance along Witt Street from its intersection with Saleyards Road to the crossing. In other words, the deceased was giving no attention to the fact that he was about to drive onto a railway level crossing. Importantly, he was not attempting to look to his left, along the railway line towards Albury, nor to his right, along the railway line towards Benalla Station, to see whether any train was coming on either line. He was driving ahead as if there were no railway crossing.
44. This fact disposes of a number of factors which have been advanced as possible causes of the collision. One such factor is sun glare. The train driver told the inquest that the sun was behind the train. Both Mr O’Connor and Mr Rogash referred to sun glare as making it more difficult to see the train. Mr Rogash said that the approaching train would be hard to see at the time of the morning shortly prior to the time of the collision, even in summer, because it was necessary to look at the sun to see up the line. It is difficult to accept this evidence. The collision occurred two weeks short of the summer solstice. By 7.45 am, at a time when there was no daylight saving in operation, the sun had already been visible above the horizon for something approaching three hours, and was therefore approaching halfway to its zenith. The photographs tendered at the inquest show the landscape to have been flat. To look along the line at that time, therefore, it would not have been necessary to look directly at the sun. At worst, there would have been some glare from the bright sun in a clear sky. Mr O’Connor described this as not blinding, but irritating. Mr Rogash described it as very bright. It was not sufficient to prevent Mr O’Connor seeing the train, as he did. Even if it were the case that the deceased’s sunglasses were in another vehicle, so that he was not wearing them, and he was particularly sensitive to glare, he would not have been prevented altogether from seeing the train. Indeed, a habitually cautious driver, troubled by glare, would be likely to take extra precautions in looking up the line to see if a train were approaching, rather than to look straight ahead and drive onto the level crossing. The deceased was not attempting to look up the line and being deprived of a view of the train by sun glare.
45. A similar comment may be made about the design of the truck cabin. It was true that, from a position on the crossing, it would have been necessary for the deceased to have turned his head more than 90 degrees to the left, in order to look up the line. To do so, he may have had to lean forward, so as to have his vision unobstructed by the structure of the truck. Of course, if the deceased had chosen to look to his left immediately after completing his turn into Witt Street, the angle would have been reduced somewhat, as would the extent of the forward movement necessary to obtain an adequate view out of the truck window. If he had been focussing on ascertaining whether there was an approaching train, the likelihood is that the deceased would have looked to his left before entering the crossing, not once he reached it. The deceased was not attempting to look to his left and finding his view obstructed by the structure of the truck. He was looking straight ahead.
46. The same can be said about the various conditions attributed to the deceased. Poor eyesight, nystagmus, a tendency to jerk his head to the right, or dizziness involving a tendency to fall to the left did not deprive the deceased of the opportunity to look to see if a train was coming. It is necessary to remember that, despite all of these conditions, the deceased was employed to drive vehicles, and was regarded as a good, cautious and careful driver by those who were familiar with his driving habits. It may be that the deceased was such a cautious driver because of his need to compensate for these conditions. In particular, the article entitled “Understanding nystagmus”, tendered to the Tribunal, makes a number of significant points. According to the article, nystagmus may cause vision to vary during the day. Vision is likely to be affected by emotional and physical factors, such as stress, tiredness, nervousness or unfamiliar surroundings. A nystagmus sufferer may tire more easily than someone without the condition. The ability to get about may be affected, and crossing roads may be more difficult than it is for someone without nystagmus. Very few sufferers of nystagmus are able to drive a car legally. If this is the case, the deceased’s nystagmus must have been towards the less severe end of the spectrum, perhaps because it was a congenital condition to which the deceased had adapted, and for which he had learned to compensate. This is consistent with a report of Dr Gilligan, dated 15 May 2003, tendered in evidence, which described the deceased as having a “very minor defect of vision”. Not only did the deceased have a driver’s licence, endorsed to permit him to drive heavy vehicles, he was also employed in a capacity that required a lot of driving and he did that driving with considerable competence and care. If he had looked to see whether a train was approaching, and been prevented momentarily from seeing the Spirit of Progress by involuntary movement of his eyeballs, resulting from his nystagmus, it is likely that he would have slowed the truck as he approached the level crossing, and continued to look until his vision cleared. Such action would have been consistent with the normal level of competence and care that he displayed. The fact is, he was not looking for the train. If he had done, he would have been bound to see the large locomotive, with its headlight on. Similarly, if his head had been jerking involuntarily to the right, the deceased would have slowed the truck until the jerking stopped, so that he could look properly up the railway line. He was not suffering from dizziness, causing him to fall to the left. The train driver could see him clearly, looking straight ahead as he drove towards and onto the crossing.
47. Nor is it likely that any defect in the deceased’s hearing would have been responsible for him failing to hear the train. Mr O’Connor heard it clearly, driving along Saleyards Road behind the deceased. The train driver not only sounded the siren for the two mandatory long blasts on passing the whistle board, but continued to sound the siren until the train was 50 yards from the level crossing. The extent to which the deceased’s hearing was impaired is not altogether clear. His medical records show that, on examination on 13 April 1964, he was described as a person who “hears well”. Mr O’Connor said that the deceased was a little on the deaf side. He also said that, on the morning of the collision, when he and the deceased were riding in the back of the utility vehicle, the deceased appeared to have no difficulty in hearing what Mr O’Connor said at an ordinary conversational level. The sound of the train’s siren, especially as it drew close to the level crossing, was unlikely to have been drowned out altogether by the noise of the truck engine, even for a driver with a hearing defect. Although there is evidence that the truck the deceased was driving was noisier than the tender truck, Mr O’Connor gave evidence at the inquest that the truck was “not very noisy” and that the deceased was “not deaf”. On a fine December morning in Benalla, whilst driving a truck in an era when trucks were not equipped with air-conditioning, it is unlikely that the deceased would have had occasion to drive with all of the truck windows closed. The fact that the sound of the siren did not draw the deceased’s attention to the approaching train at any stage is not explained either by any defect in his hearing or by any noise that might have emanated from the truck.
48. The deceased’s lack of awareness of the train is therefore not explained by any natural phenomenon, any condition suffered by the deceased or any element of the vehicle that he was driving. It is apparent that the deceased neither saw nor heard the train, which Mr O’Connor had no difficulty in seeing or hearing, because the deceased was not paying adequate attention to the task of driving his truck across a level crossing. He was not focussed on the possibility that there might be a train approaching the crossing as he was doing so. So unfocussed was he that he did not see the train as he drove along Saleyards Road, although it was visible intermittently, he did not hear it, although its siren was sounding for most of the 15 seconds before the collision occurred, and he did not bother to look for it. Given the evidence of his normal level of competence and caution as a driver, his lack of focus on the task of driving across the level crossing calls for some explanation. Such a lack of focus is in contrast to the deceased’s normal driving habit. Most, if not all, people suffer from temporary lapses in concentration. On the evidence, such lapses were uncharacteristic of the deceased while he was driving. Even someone who lived locally, as the deceased did, and might have been aware of the time at which the Spirit of Progress normally passed through the level crossing, would hardly fail to look out for a train before crossing a railway line. There were, after all, two lines, and it is unlikely that the deceased either carried all of the possible train timetables in his head or expected that every train that went through the level crossing would be running on time. The one factor that is disclosed by the evidence that might have caused this uncharacteristic lapse of concentration, lasting long enough to result in the collision, is the fact that the deceased had been drinking heavily on the evening before the collision. Given that he had been drinking heavily, and given that he was prone to suffering hangovers as a result of heavy drinking, the likelihood is that the deceased was suffering from a hangover at the time of his death. Although the limited studies available as to the effects of hangovers on tasks such as driving motor vehicles are inconclusive, it is probable that it was the effects of the hangover that robbed the deceased of his normal cautious attitude as a driver.
49. On the balance of probabilities, the Tribunal finds that a cause of the deceased’s death was the effects of a hangover, from which he was suffering by reason of his heavy drinking on the eve of the collision in which he was killed.
50. The next step for the Tribunal is to determine whether the deceased’s drinking episode on the eve of his death was part of a pattern of heavy drinking that might amount to alcohol abuse, or might be indicative of alcohol dependence. For the reasons given in [15]-[19], it is not at this stage necessary to have regard to the elements of the relevant statement of principles. The inquiry at this stage is whether the deceased’s condition at the time of his death was such as to amount to a kind of death that might fall within the statement of principles, if the evidence pointed to a hypothesis that might connect it with war service. The focus is on the condition at the time of death, not on its earlier development.
51. Mrs Codd’s evidence on this point is strong. According to her, by the time of his death, the deceased was a regular drinker, who drank alcohol every day and did so excessively if he was stressed. She believed he self-medicated with alcohol to settle his nerves. He frequently drank to excess and became morose, and sometimes verbally aggressive, if he was intoxicated. His drinking caused disputes and disharmony between the deceased and Mrs Codd, but this did not cause him to change his ways. He squandered a significant portion of his wages on alcohol. This was the reason for Mrs Codd taking a paid job as a cleaner, which she commenced shortly prior to the deceased’s death. At one point in her oral evidence, Mrs Codd said that the deceased could not help himself in relation to drinking. She also said that he was in denial. He would respond to suggestions that his drinking was excessive by saying that he did not have a problem. A number of times, she considered leaving him because of his drinking. In the period leading up to his death, Mr Codd was away all week for work purposes, would often spend much of each Saturday drinking at the hotel and, on Sundays, when the hotel was closed, would visit friends and drink with them. Mrs Codd definitely regarded her family as having been affected by the deceased’s drinking. For him to come home intoxicated on a Friday night after a week’s work was a regular routine. According to Mrs Codd, the deceased was reluctant to admit to anyone how much he drank. Drinking was something he could not give away and he did not want anyone to interfere with him. She described him as wanting to forget things.
52. Largely on the basis of Mrs Codd’s account, Dr Epstein diagnosed the deceased’s condition as alcohol abuse, and described him as an alcoholic.
53. The deceased’s former work colleagues who gave evidence tended to describe a drinking pattern that was more like what might be expected of usual drinking habits of a manual worker in a rural town in the 1960s. Mr O’Connor made a statement in which he described the deceased as a drinker who on Friday nights could not leave work early enough to get to his “watering trough”. In cross‑examination, he conceded that he could not remember the deceased actually saying this, but that the deceased went with other work colleagues who expressed that attitude. Mr O’Connor also said in his statement that he saw the deceased drinking at functions, such as the CRB Christmas break-up party. In cross‑examination, he conceded that he never saw the deceased drunk. He described the deceased as a happy family man. Mr Rogash’s evidence was that, when away from home during the week, the deceased and Mr Rogash would go to a hotel each evening and drink up to six 7 ounce glasses of beer, and then go to the motel at which they were staying. On Fridays, when they returned to Benalla, Mr Rogash went home and, to the best of his knowledge, the deceased did also. Like Mr O’Connor, Mr Rogash did not see the deceased drunk at Christmas parties. He described as “bull” the suggestion that the deceased was an alcoholic.
54. One issue bearing on the question of the deceased’s drinking habits is an economic one. The deceased’s wages were undoubtedly close to the lower end of the earnings spectrum. They were supplemented only to a very small extent by pension in respect of the conditions from which the deceased suffered that were accepted as having been war-caused. The deceased was paying off a war service loan, secured by a mortgage on the house in which he and his family lived in Benalla. He and Mrs Codd had six children, all of whom attended school in the Catholic school system, where some fees were payable. Both Mr O’Connor and Mr Rogash gave evidence that it would have been difficult for the deceased to keep a wife and six children, make his mortgage payments, pay school fees and meet other household bills on the wages he received. This evidence suggests that the deceased would not have had a great deal of money to spend on alcohol. Both Mr O’Connor and Mr Rogash described seeing the children at times, and finding that they were far from neglected. Mr O’Connor described them as lovely children and said that they were “a credit to her”, meaning Mrs Codd. Mr Rogash said the children were looked after, well fed, and well dressed in school colours.
55. Mrs Codd presented a somewhat different picture. She did not know how much Mr Codd’s earnings were. She did not know how much he kept for himself. She said that she managed on whatever money he gave her, because she was a good manager. She sewed and knitted the family’s clothes and never went out socially.
56. On balance, the evidence of Mrs Codd on these matters is more likely to be accurate. It is likely that the deceased was able to restrain his drinking habits in the presence of most of his work colleagues, to the extent of remaining respectable. Thus, he refrained from getting drunk at Christmas parties. He did drink regularly in Mr Rogash’s company, but apparently not to excess. Mr Rogash’s assumption that the deceased, like Mr Rogash, went home after finishing work in Benalla on Fridays is inconsistent with Mrs Codd’s evidence that the deceased was drunk regularly on Friday nights and continued to drink during the weekend. It may be that the deceased’s relative restraint at some times was the product of his limited financial resources. While it is clear that the children were not neglected, it does appear from Mrs Codd’s evidence that this was more the result of her frugality, careful management and labours, than it was due to the generosity of the deceased with his money. The evidence is certainly consistent with the deceased withholding sufficient of his wages to spend on his drinking habits. On the balance of probabilities, the Tribunal finds that, by the time of his death, the deceased was drinking heavily and regularly enough to warrant a diagnosis of alcohol abuse possible. He was doing so to relieve stress, so his use of alcohol was in the nature of self-medication. His use of alcohol was interfering with his family life, even if not with his working life, at least until the morning of his death. The drinking bout that was a significant causal factor in his death was part of a regular pattern of heavy drinking. The kind of death he suffered could be characterised as death by alcohol abuse.
THE HYPOTHESIS
57. The Tribunal must now embark on the Deledio process. The first stage of that process is to see whether the evidence points to a hypothesis connecting the deceased’s heavy drinking, an episode of which was a causal factor in his death, with his war service. The hypothesis on which the applicant relied was that, prior to his war service, the deceased either did not drink or drank very little. During his service in New Guinea, he served as a stretcher-bearer and was badly affected by the sight of the casualties with which he had to deal in that capacity. As a consequence, he began drinking heavily in an attempt to overcome the consequences of his traumatic experiences. When he returned to Australia he had developed a habit of heavy drinking, which continued and increased until his death.
58. The evidence pointing to this hypothesis is as follows. The deceased told Mrs Codd that he served as a stretcher-bearer during the war and was upset by his experiences, particularly by having to carry severely wounded soldiers and the bodies of deceased soldiers. Mrs Codd said that the deceased told her he had nightmares about his wartime experiences, and that he was very distressed at having to be a stretcher-bearer and at seeing what he had seen. It played heavily on his mind. He told her that he had started drinking during the war and that he drank to calm his nerves. The deceased also told Mr O’Connor that he was a returned soldier, who had been a stretcher-bearer in New Guinea. He said that his experiences there were “too bloody shocking to talk about”. According to Mr O’Connor, the deceased was inclined to become emotional about the subject of his wartime experiences, and to clam up about them. He was troubled by experiences he had during his war service.
59. Mrs Codd also gave considerable evidence at various points in the history of this proceeding about what the deceased’s family had said about him. They said he came back from his war service a changed man. He had become very nervous. He sometimes spoke about some of the terrible things he had seen as a stretcher-bearer in New Guinea. Mrs Codd said the deceased’s sister told her that he had either consumed no alcohol, or had hardly consumed any alcohol, prior to the war, but he came back as a heavy drinker. Mrs Codd also said that the deceased’s mother and sister in effect warned her against marrying him, saying that she was too good for him. Mrs Codd understood this to have been because of the deceased’s drinking habits.
60. The deceased’s brother Jack Codd made a written statement in 1990, which was tendered to the Tribunal, and gave oral evidence. In his written statement, he said that he was surprised to see the deceased come back after war service drinking to excess. He said that before 1941 he didn’t think the deceased had ever had a beer. For a start, he said, the deceased could not afford it. In addition, their mother was very strict. Mr Codd could not say when after October 1941 the deceased began to drink.
61. Mrs Codd did not meet the deceased until 1950. She said that he was drinking heavily at that time.
62. This evidence points clearly to the hypothesis advanced. It is no part of the Tribunal’s function at this stage to decide whether the evidence should be accepted, in the light of conflicting evidence. To do so would amount to fact-finding.
THE ASCERTAINMENT OF THE RELEVANT STATEMENT OF PRINCIPLES
63. Stage two of the Deledio process involves determining whether there is an appropriate statement of principles, made pursuant to s 196B(2) of the VE Act. Given that the condition accepted as having contributed to the deceased’s death is heavy drinking, the appropriate statement of principles is that in respect of alcohol dependence or alcohol abuse and death from alcohol dependence or alcohol abuse. The applicability of that statement of principles has been determined in a binding way by the judgment of Gordon J in the second Codd case. As will be apparent from [11] and [12] above, there are two possible statements of principles in respect of alcohol dependence and alcohol abuse, the 1998 SoP and the 2008 SoP. The former was current at the time of the Tribunal’s hearing of this case, and the latter has come into force subsequently. The authorities establish that the Tribunal is obliged to test the hypothesis against the template in the statement of principles in force at the time of the Tribunal’s decision, but if it does not fit that template, the applicant is entitled to have the hypothesis tested against the template in the statement of principles current at the time of the Commission’s decision. See Repatriation Commission v Gorton [2001] FCA 1194 (2001) 110 FCR 321 at [42]-[43] per Heerey J and [62] per Allsop J, with whom Emmett J agreed; and Repatriation Commission v Keeley [2000] FCA 532 (2000) 98 FCR 108 at [44]-[46] per Lee and Cooper JJ. The relevant statement of principles, at least as a starting point, is the 2008 SoP.
DOES THE HYPOTHESIS FIT THE TEMPLATE?
64. The third stage of the Deledio process is for the Tribunal to determine whether the hypothesis to which the evidence points fits the template in the statement of principles.
65. Both Dr Epstein, who gave evidence on behalf of the applicant, and Dr Walton, who gave evidence on behalf of the Commission, were of the view that the evidence of the deceased’s drinking did not fall within the definition of “alcohol dependence” in cl 2(b) of the 1998 SoP. The focus was therefore on the definition of “alcohol abuse”.
66. There can be little doubt that the deceased’s condition as hypothesised fell within the definition of “alcohol abuse” in cl 3(b)A(1) and (4) of the 2008 SoP which are relevantly the same as in the equivalent definition in cl 2(b)A in the 1998 SoP, by reference to which the expert evidence was given. The evidence supporting the hypothesis discloses a maladaptive pattern of alcohol use, leading to clinically significant impairment, as disclosed by recurrent alcohol use resulting in a failure to fulfil major role obligations at home, as well as continued alcohol use despite having recurrent interpersonal problems. That is to say that the evidence on which the hypothesis is based is to the effect that, for a number of years during his married life, the deceased’s pattern of alcohol use resulted in his failure to fulfil the major role obligation of breadwinner at home, in that he did not provide Mrs Codd with sufficient money to maintain the household without substantial effort on her part to economise, and also led to recurrent interpersonal problems between the deceased and Mrs Codd. The Tribunal has accepted on the balance of probabilities, as part of the Tribunal’s pre-Deledio task, evidence that the deceased’s drinking made him morose, and sometimes verbally aggressive, if he was intoxicated, as well as causing disputes and disharmony between him and Mrs Codd, despite which he did not cease to drink. Along with the issue of money for housekeeping, these problems caused Mrs Codd to consider leaving the deceased because of his drinking. On this evidence, the deceased used alcohol despite significant alcohol-related problems. Because the medical witnesses on the issue are agreed that his symptoms did not fall within the definition of alcohol dependence in the 1998 SoP, on the evidence the Tribunal has accepted, and the evidence supporting the hypothesis, they fall within the definition of alcohol abuse in both the 2008 SoP and the 1998 SoP.
67. Accordingly, it is necessary to go to cll 5 and 6 of the 2008 SoP, to determine whether the hypothesis fits the template in terms of making the connection between the deceased’s alcohol-related death and his operational service. In this respect, the focus of the evidence was on cl 5(b) of the 1998 SoP, which required that the deceased have experienced a severe stressor within the two years immediately before the clinical onset of alcohol abuse. The relevant provision is now cl 6(c) of the 2008 SoP, which requires that the deceased have experienced a category 1B stressor within five years before the clinical onset of alcohol abuse. The definition of “a category 1B stressor” in cl 9 includes “(b) viewing corpses or critically injured casualties as an eyewitness” and “(e) being an eyewitness to or participating in, the clearance of critically injured casualties”. If, as hypothesised, the deceased was exposed to the sight of dead and severely wounded people, whilst carrying them on a stretcher, he fell within these elements of that definition, as he did of the definition of “experiencing a severe stressor” in cl 8 of the 1998 SoP. He experienced, witnessed, or was confronted with, events that involved threats to the physical integrity of others, namely the persons he was carrying, and it might be expected that those experiences would invoke intense horror. Both statements of principles provide specifically that witnessing casualties or participation in or observation of casualty clearance are events that qualify as severe stressors.
68. As to whether the category 1B stressor was experienced within the five years immediately before the clinical onset of alcohol abuse, the hypothesis is that, by the time he returned from his war service, the deceased had started drinking and was drinking to calm his nerves. He was already regarded by members of his family as a changed man, who had become very nervous, and was troubled by the things he had witnessed. He was drinking to excess.
69. Both Dr Epstein and Dr Walton gave evidence about the issue of clinical onset, particularly clinical onset within two years of experiencing the severe stressor, in the terms of the 1998 SoP. In the evidence-in-chief of Dr Epstein, the following exchange occurred:
[Counsel for Mrs Codd]: I want to take you now to the question of the clinical onset of the condition, and you are familiar with the requirement of the statement of principle, are you, in relation to a risk factor that must be met is experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse?---Yes.
Can I ask you, doctor, to accept these assumptions for the purposes of your opinion. Can you accept that he – the late Mr Codd saw service in Papua New Guinea in 1945 at a time when the Australian Army was engaged in a campaign from a Aitape – I think that’s how you say it – to Wewak and in which casualties were sustained. Can you accept that he operated, at least for some of that time, as a stretcher bearer and that, as a result, he saw the casualties. Can you accept that he later suffered nightmares which I recall you referred to in your report, and had told his wife that he had seen dreadful things, can you accept that he was drinking heavily, on his return, that he was irritable, and nervy and that prior to the marriage in 1952, that Ron Codd’s sister, as I recall, mother, warned Mrs Codd not to marry Ron Codd so as not to ruin her life. Accepting those, those assumptions, are you able to express an opinion about the date of clinical onset of the alcohol abuse?---Well, he does seem to meet the criteria for the type of stressor that is described in the statement of principles, that is, he witnessed actual bodily harm to another person. That seems to be self-evident if he was in that role as a stretcher bearer. That would have been – I think he arrived in that area some time early 1945, the war finished in August 1945, and I think he came home in early 1946, as I remember. So if when he came home he was drinking heavily, then I think it’s a fair assumption that at that point he was manifesting signs of using alcohol as a means of dealing with whatever, you know, emotional turmoil he was experiencing. It just seems to me that in retrospect, one could say he was experiencing problems with alcohol at that time.
70. Dr Epstein was not cross-examined on this issue.
71. In cross-examination of Dr Walton, counsel for Mrs Codd asked him to assume that the deceased either drank very little or not at all before his service, that the deceased’s sister had told Mrs Codd that the deceased had come back from the war a changed man, that he was nervy and irritable, that he came back from the war as a heavy drinker of alcohol, that the deceased’s mother and sister suggested to Mrs Codd before she married the deceased that she was too good for him, and that during his service, the deceased was exposed to casualties. Counsel then asked Dr Walton whether on that basis, the deceased had problems with using alcohol immediately after his discharge, if not before. Dr Walton’s reply was “Well, you’ve – you’ve asked me to assume that.” Counsel then asked whether those features, if fact, would support the proposition that the deceased had problems with alcohol, or was suffering alcohol abuse immediately after his discharge, if not before. Dr Walton’s response was that, the way that the question was put, he had been asked to assume that virtually all the criteria are met, so that it was not a matter of his opinion. Counsel then asked whether, as a matter of Dr Walton’s opinion, the clinical onset of the deceased’s condition would be either before or shortly after discharge. Dr Walton’s reply was “Well, you’ve defined it as such. I mean, it – you’re not asking me do I think that, am I right, this is a hypothetical question you’re putting to me?” Counsel then asked if he accepted those facts as put and Dr Walton responded that, if they were accepted, it would seem that the necessary elements of the definition of alcohol abuse were covered, “and the relevant clinical onset as well.”
72. The Tribunal has no reason to reject the evidence of these two witnesses, one called by each of the parties to the case. The Tribunal is therefore bound to find that the hypothesis meets the most difficult of the criteria in the 1998 SoP, namely the requirement of the clinical onset of the disease within two years after the deceased experienced a severe stressor. Such a finding makes it inevitable that the hypothesis fits the more relaxed criterion in cl 6(c) of the 2008 SoP, of experiencing a category 1B stressor within five years before clinical onset of the disease. It therefore appears that the hypothesis on which Mrs Codd relies fits the template in the 2008 SoP. The hypothesis is therefore a reasonable one.
FACT FINDING: THE APPLICATION OF THE BEYOND REASONABLE
DOUBT TEST
73. This is the fourth and final stage of the Deledio process. The Tribunal must now ask itself whether it is satisfied beyond reasonable doubt that the deceased’s death was not war caused. Without applying any presumption, or regarding any party as bearing any onus of proof, the Tribunal must determine whether the whole of the evidence is such as to exclude beyond reasonable doubt the hypothesis that otherwise would connect the death of the deceased with his war service.
74. In the present case, the evidence that might contradict the hypothesis falls into three broad areas. First, the Commission sought to challenge the deceased’s assertions that he performed the duties of a stretcher-bearer during his war service. Second, there is a conflict of evidence on the question whether the deceased was a heavy drinker at all. Third, if the deceased did serve as a stretcher-bearer, and if he did have a heavy drinking habit, there remains a question whether he acquired the drinking habit in consequence of his experiences during his war service, or as a result of the social milieu in which he lived and worked.
75. The Tribunal had before it such military records as are available concerning the deceased’s military service. Based on those records, and on other research, Mr Morgan on behalf of Writeway Research Service Pty Ltd produced a report dated 3 October 2007. The records show that the deceased’s service was of two types, namely as a batman (providing personal support to an officer and doing his unit’s laundry) and as a Dental Clerk Orderly. During the Aitape-Wewak campaign in New Guinea, the deceased was classified as a Dental Clerk Orderly with D Section 2/4 Australian Dental Unit and deployed with the 2/1 Field Ambulance. The Australian Forces advancing from Aitape to Wewak were divided in two, with one force advancing along the coast and the other through the mountains. The deceased arrived in Aitape in January 1945 and, from February onwards, was involved in the advance along the coast. Mr Morgan concluded that he was probably located with the main dressing station of the 2/1 Field Ambulance.
76. The deceased’s medical classification was 2A, reflecting the disabilities from which he suffered. He had also had a history of tenosynovitis of the Achilles tendon, for which he had received hospital treatment on 15 July 1944, and which resolved after that treatment. He was also recorded as having congenital deformities of the left fifth toe and the left chest wall, a left varicocele, nystagmus, a cardiac systolic murmur and a generally poor physique, and was noted to be nervy. In Mr Morgan’s view, the deceased was unlikely to have been used as a stretcher-bearer, given his physical state. Indeed, his physical condition was probably the principal reason for his classifications as batman and Dental Clerk Orderly from time to time. He was not sufficiently fit to fight in the frontline.
77. There is no record of the deceased ever being classified as a stretcher‑bearer. Stretcher-bearers so classified were those who served with forward combat units, carrying the dead and wounded from the battlefield to where the dead could be buried and the wounded could be treated. They were required to be fit enough to be combat troops themselves. It is therefore clear that the deceased was never a stretcher-bearer in this sense. In addition, Mr Morgan made inquiries of a Mr Wilkinson, who served as a Captain with the Australian Forces advancing from Aitape to Wewak through the mountains. Mr Wilkinson told Mr Morgan that members of the B Section 2/4 Australian Dental Unit, who accompanied the troops with which Mr Wilkinson was serving, had never been used as stretcher-bearers, and that he had never seen dental personnel act as stretcher-bearers.
78. Whilst the deceased was almost certainly not involved in carrying a stretcher in a forward combat zone, Mr Morgan recognised that it was not possible to say that he had never carried any wounded men on a stretcher. Within the environs of the dressing station, Mr Morgan recognised that it was possible that the deceased had been asked to carry casualties on a stretcher. In the exigencies of combat, it is easy to see that the demand for a Dental Clerk Orderly would not be constant, and that anyone available might be called upon to assist in moving casualties who had been brought within or close to the dressing station by the frontline stretcher-bearers. There is no reason to suppose that the deceased gave to Mrs Codd, and to his workmates, manufactured accounts of his war service, by claiming to them that he had done something that he had never in fact done. The likely explanation is that the deceased saw himself as a stretcher-bearer when he was carrying casualties in the environs of the dressing station, taking them to where they would actually receive treatment, and perhaps to where they could recuperate or be transported out, after they had received initial treatment. It is likely that being called upon to perform this function was what led the deceased to describe himself as having been a stretcher‑bearer during the war. It is certainly not possible for the Tribunal to be satisfied beyond reasonable doubt that the deceased did not have the experiences he claimed to have had whilst a stretcher-bearer during his war service.
79. As to the question of the deceased’s drinking habits, the Tribunal has already accepted on the balance of probabilities that, at the time of his death, the deceased was a heavy drinker, whose condition was capable of amounting to alcohol abuse. The condition had obviously worsened over the years. One of the greatest difficulties in the case is to make any clear finding about the extent of the deceased’s drinking during the period immediately following his discharge from the Army. The evidence supporting the hypothesis is sparse, consisting of Mrs Codd’s assessment of the deceased’s drinking habits after she met him in 1950, Jack Codd’s written statement that he was surprised to see the deceased come back after his war service drinking to excess, and what the deceased’s mother and sister had said to Mrs Codd after she and the deceased began their courtship.
80. Mrs Codd came from a somewhat sheltered background, growing up in a home in which alcohol was not part of the family life. Her assessment of the deceased’s drinking habits from time to time may be unreliable, because she had no yardstick against which to measure those habits. She gave evidence that, before she was married, she did not know what drinking to excess was, because she had no experience with that type of life. She said that, in the time leading up to her marriage, she only saw the deceased intoxicated a few times. She also said that before marriage she saw him drink more than six glasses of beer on a single occasion. It is not clear whether this occurred more than once. In cross‑examination, when she was asked whether she saw the deceased intoxicated before they were married, she replied “really, no”. Again, this evidence is ambiguous. It may be that Mrs Codd was comparing the deceased’s level of intoxication before marriage with what she later experienced. She said that, in the years immediately after her marriage, the deceased only drank at a hotel after work on one or two nights a week. Sometimes he brought home two bottles of beer, and she did not know how many glasses of beer he had had to drink at the hotel. She could not remember how often the deceased came home drunk before the introduction of 10.00 o’clock closing in the 1960s, although after that he did so quite often. After 10.00 o’clock closing, the deceased went to the hotel most nights after work, when he was at home during the week. He did not come home for a meal. In Mrs Codd’s cross-examination, she also said that, from time to time, she raised concerns about the deceased with the family doctor, but she did not raise his drinking. She said that she did not think anything could be done for him, because the deceased would not listen to anyone and did not think he had a problem. She may also have been embarrassed to admit, even to a medical practitioner, that her husband had an alcohol problem. Dr Epstein said that, if the deceased did not drink every day, and drank only, or drank more, when distressed, it might lead him to question his diagnosis of alcohol abuse. On this basis, he said that it may not have been until 1954 when the alcohol problem became manifested.
81. The evidence of what the deceased’s mother and sister said to Mrs Codd is, of course, hearsay evidence and its weight must be assessed accordingly. The deceased’s mother has long since passed away. His sister was still alive at the time of the Tribunal’s hearing, but her mental condition had deteriorated with age to the point where the parties accepted that she would not be capable of giving reliable evidence to the Tribunal. If it be accepted that the deceased’s mother and sister did communicate to Mrs Codd concerns about the deceased’s drinking habits, there is a question about the reliability of their assessments, similar to that concerning Mrs Codd’s assessment. Although the deceased’s father had been a hotel worker, Jack Codd said, by way of explanation of the deceased having drunk little or nothing before his war service, that their mother was very strict. It may be that the deceased’s family regarded him as a heavy drinker, because they had no yardstick against which to judge such questions. In his evidence before the Tribunal, Jack Codd retracted his earlier written statement that the deceased had returned from his war service drinking to excess, and said that he did not know why he had said such a thing. He also said that he only saw the deceased on a few occasions after the deceased returned to Victoria. Although they drank on those occasions, Jack Codd’s evidence was that they only drank around four beers. Jack Codd did say that he thought that the deceased may have lived with their sister in Benalla for some time between his war service and his marriage to Mrs Codd. If this were the case, it would mean that the sister was better placed to offer an opinion about the deceased’s drinking habits at that time, and that more attention should be paid to her attempt to warn Mrs Codd against marrying him.
82. There is also evidence from medical records at various times of the deceased himself describing his drinking to medical practitioners. His descriptions were in terms of having six glasses a week before marriage, a couple of glasses of beer on payday, or four to five beers a fortnight. This evidence can be discounted to a considerable extent. Both Dr Walton and Dr Epstein gave evidence that it is very common for people with heavy drinking problems to minimise the amount of drinking that they actually do, when invited to describe their drinking patterns. Mrs Codd said that none of these was an accurate description of his drinking habits.
83. The question for the Tribunal is not whether this negative evidence, and the reservations about the reliability of assessments, cast doubt on the hypothesis, or even whether the Tribunal could be satisfied on the balance of probabilities that the deceased was a heavy drinker in the period immediately after his discharge from military service and in the early stages of his marriage to Mrs Codd. The question is whether, on the whole of the evidence before it, the Tribunal is satisfied beyond reasonable doubt that the hypothesis cannot be sustained. The negative matters just recounted in detail must be set against the accounts given by Mrs Codd to Dr Epstein, on which he based his opinion, the written statements Mrs Codd made and adopted at various stages in sworn evidence and the written statement given by Jack Codd. If the whole of the evidence about the development of the deceased’s drinking habit is such as to leave the Tribunal in a state of uncertainty as to whether he had or had not developed alcohol abuse soon after his war service, the Tribunal is bound to reach the conclusion that the hypothesis stands. In the result, the Tribunal is not satisfied beyond reasonable doubt that the deceased did not have a drinking problem at that time. In particular, the Tribunal cannot be satisfied beyond reasonable doubt that a drinking problem would not have been manifest to a medical practitioner upon clinical observation, if the medical practitioner had been aware of all the facts at the time. In this fact-finding process, an absence of evidence is not evidence of absence. The Tribunal is bound by s 119(1)(h) to take into account difficulties that lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to the effects of the passage of time, including the effect of the passage of time on the availability of witnesses. The only witness available in respect of the period immediately following the deceased’s discharge from military service is his brother Jack Codd. He has given a written statement for the purposes of evidence that supported the hypothesis, but has repudiated it in sworn evidence. His evidence in this respect is therefore equivocal. As to the rest, the situation can only be pieced together from fragments, such as those which the Tribunal has in evidence. In making its assessment, the Tribunal must bear in mind both the inherent plausibility of the hypothesis and the difficulty of ascertaining the facts one way or the other. There is every reason to suppose that a person exposed to the sight of casualties might be troubled by that experience, might find himself revisiting the experience from time to time, and might use alcohol excessively in an attempt to reduce the effects of that condition. In the circumstances, the Tribunal cannot be satisfied beyond reasonable doubt that the deceased did not have a serious drinking habit in the period immediately following his military service and in the early years of his marriage.
84. The same may be said for the question whether the deceased would have acquired a drinking habit of the kind that he had in any event. It is true that the social and working environment of the deceased might have supported a culture that condoned or encouraged excessive drinking and that excessive drinking in accordance with such a culture might develop into a serious alcohol habit capable of amounting to alcohol abuse. In the present case, it is possible that the deceased would have turned into a heavy drinker, even if he had not had the wartime experiences that he recounted. There is evidence, however, that he claimed that he drank to forget his experiences. The Tribunal cannot be satisfied beyond reasonable doubt that the deceased became a heavy drinker for reasons other than his wartime experiences.
85. The result of the fact-finding process is that the hypothesis stands. The Tribunal cannot be satisfied beyond reasonable doubt that the kind of death suffered by the deceased, namely death of which his excessive drinking, capable of amounting to alcohol abuse, was a cause, was not war-caused.
CONCLUSION
86. Having concluded that the deceased’s death was war-caused, in accordance with the provisions of the VE Act, the Tribunal is obliged to set aside the decision of the Veterans’ Review Board to the contrary, and to substitute a decision that Mrs Codd is entitled to pension pursuant to the VE Act as the widow of the deceased, whose death was war-caused.
I certify that the eighty‑six [86] preceding paragraphs are a true copy of the reasons for the decision of:
Justice PRA Gray, Presidential Member
Miss E.A. Shanahan, Member
(sgd) A Capuano
Associate
Dates of hearing: 28 – 30 November 2007
Date of decision: 19 November 2008Counsel for applicant: Ms J. Bornstein
Solicitor for applicant Williams Winter Solicitors
Counsel for respondent Ms J. MacDonnell
Solicitor for respondent: Australian Government Solicitor
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