Codd and Repatriation Commission
[2006] AATA 905
•24 October 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 905
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2005/662
VETERANS’ APPEALS DIVISION ) Re KATHLEEN CODD Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date24 October 2006
PlaceMelbourne
Decision The decision under review is set aside and in substitution IT IS DECIDED the death of the late Ronald Codd was war‑caused. ..............................................
Senior Member
VETERANS’ AFFAIRS – remittal from Federal Court – application by widow of New Guinea veteran – deceased killed in course of employment when vehicle being driven struck by a train – whether impairment of concentration because he was a chronic alcoholic – applicant submitted SOP did not apply – “kind of death” was death by road accident – s120A(4) asserted – reasonableness of hypothesis to be determined by law prevailing before 1994 amendments – whether a SoP must be satisfied to support the hypothesis – decision under review set aside
Veterans’ Entitlements Act 1986 (Cth) s120, s120(1), s120(3), s120A, s120A(3), s120A(4), s196B and s196B(2)
Statement of Principles Instrument No 76 of 1998
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Hancock [2003] FCA 711
East v Repatriation Commission (1987) 16 FCR 564
Bull v Repatriation Commission [2001] FCA 1832
Repatriation Commission v Deledio (1998) 49 ALD 193
Woodward v Repatriation Commission [2003] FCAFC 160
Brown v Repatriation Commission [2006] FCA 914
Repatriation Commission v Towns [2003] FCA 1262
Repatriation Commission v Gosewinckel [1999] 1273 FCA
Repatriation Commission v McKenna (1998) 28 AAR 7
Repatriation Commission v Bey [1997] 1347 FCA
Repatriation Commission v Hill (2002) 69 ALD 581Critch v Repatriation Commission (1996) 43 ALD 574
REASONS FOR DECISION
24 October 2006 Mr John Handley, Senior Member 1. On 20 August 2004 a decision was made by me following a review by Mrs Codd of a decision made by the Veterans’ Review Board (“VRB”) that the death of her husband was not war-caused. I decided to set aside the decision under review and find that the death of the late Ronald Kevin Codd on 7 December 1968 was war‑caused. The Respondent lodged an appeal against that decision in the Federal Court. On 30 June 2005, His Honour, Ryan J, decided that the appeal should be allowed and the decision should be set aside. His Honour decided to remit the application to the Tribunal to be heard and determined according to law. This decision has been completed at the conclusion of the rehearing where Mr Green QC, appeared on behalf of Mrs Codd and Ms Macdonnell appeared on behalf of the Respondent.
2. The circumstances giving rise to the applications by Mrs Codd may be briefly summarised as follows.
3. Mrs Codd is the dependent widow of the late Ronald Codd who died when struck by a train and when driving a motor vehicle in the course of his employment on 7 December 1968. He was then 45 years of age. Mr Codd was previously a member of the Australian Army between 5 October 1942 and 9 August 1946. He served in New Guinea as a stretcher bearer and it would appear from the documents lodged that he was exposed to some horrifying events. There are some witness statements on the file which would indicate that the deceased did not consume alcohol prior to service but did consume it subsequently. A connection between service and subsequent consumption of alcohol was advanced on behalf of Mrs Codd.
4. The death of Mr Codd occurred when he drove a truck across the path of the South bound Sydney to Melbourne Spirit of Progress Train at an intersection in Benella. A statement provided to the Coroner by a person driving a vehicle behind Mr Codd indicated that the brake lights of his vehicle were not displayed immediately prior to entering the railway crossing. The case for Mrs Codd was that her husband suffered from impaired concentration by reason of chronic alcohol abuse. She said that on the night prior to her husband’s death, he arrived home after 10:00pm and was then drunk. The accident occurred at 7:47am the next morning. An analytical chemist provided a report to the Coroner following post-mortem. He reported that the alcohol content in the blood found within the pleural cavity was 18mg per 100ml. The alcohol content in the abdominal or thoracic cavity (described as “IVC”) was 19mg per 100ml of blood. He also found that there was 43mg of alcohol per 100ml of urine. The chemist equated the alcohol content within the blood samples to one seven ounce glass of Victorian beer for an 11 stone male person.
5. Mrs Codd gave evidence in the first hearing but did not give evidence in the remittal. A statement completed by her on 5 December 2003 which was received into evidence during the first hearing is reproduced as follows:
I married Ronald Kevin Codd on 16 August 1952. I first met Ron after his war service. Ron was born on 14 June 1923 and died on 7 December 1968.
My husband served in the Australian Army from 5 October 1942 to 9 August 1946. He served as a Stretcher Bearer in New Guinea.
I understand from talking to Ron’s family that he was a non-drinker before the war. I understand that he commenced drinking during his service. It is my recollection that he was a nervy man when I met him. I recall that from the beginning of our marriage he was a restless sleeper and suffered frequent nightmares. He would scream in his sleep words such as “don’t, don’t” and “here it comes, here it comes”. He was a man who was easily upset and sudden noises and the loud noise of children irritated him.
Ron did talk to me about his war service on occasions. He seemed particularly upset by his experiences as a Stretcher Bearer in New Guinea and told me of incidents when he carried bodies and wounded men who had been shot for long distances.
Ron suffered a nervous twitch which involved jerking his head. He was often verbally aggressive-particularly if he consumed too much liquor.
Ron was a regular drinker when I met him; he drank every day. I noticed that he drank excessively if he was stressed. I believe that he self-medicated on alcohol in order to settle his nerves. He frequently drank to excess during our marriage. He tended to become morose when intoxicated.
Ron’s drinking caused a lot of disharmony and we had many disputes over it. These disputes did not cause him to change his ways. Not only was he morose and abusive when intoxicated but I was also concerned that he squandered a significant proportion of his wage on alcohol so that I needed to obtain employment in order to support the family. There were a number of times when I considered leaving Ron.
On the evening before Ron’s death he came home late from the Hotel. I gathered that he had been drinking for some hours. I was in bed when he arrived home at about 10.30pm. He was intoxicated. He got into bed beside me and then became very agitated about a blow fly which was buzzing around our bedroom. One of his superstitions had been that a blow fly flying around after going to bed indicated a forthcoming death. I recall that I got out of bed in order to kill the fly with insecticide because he was so restless. I then fell asleep.
Ron left home for work at about 7.00am on Saturday 7 December 1968. I saw him before he left for work but there was nothing remarkable that I can remember about his state that morning.
My husband had continued to suffer nightmares and restlessness at night right up until the time of his death.
After discharge Ron had initially obtained work as a Bricklayer. He obtained work as a Driver with the CRB well over 10 years before his death. He was a cautious driver.
The collision occurred at the railway crossing at Witt Street, Benalla. This was an unsignalled crossing but Ron knew that intersection well. Ron worked on Saturday mornings and his routine was to collect his truck from the CRB yard and then drive it to the CRB depot. That route took him through the very intersection where the collision occurred and it seems that Ron was following that routine on the morning of the collision with the train. Ron was also aware of the train timetable. Whenever I had travelled with Ron in the car he had always been very particular and cautious about stopping at intersections.
It is my belief that Ron’s heavy consumption of alcohol on the previous evening contributed to the collision. It is my understanding that the evidence from witnesses was that he had failed to apply the brakes of his truck at all prior to the collision with the train. Whilst I accept that there may well have been some sun glare, Ron knew the intersection well, would have known that the train would be passing through at about the time that it did and I therefore do not believe that sun glare could be the complete answer as to why he failed to stop at the intersection.
Ron did suffer hypertension which was accepted as war caused. He took medication for that condition and his treating doctor at the time was Dr. J. Alexander of Nunn Street, Benalla. Ron did on occasions complain to me of feeling light-headed and sometimes this symptoms (sic) came on when he was simply sitting down. I believe that that symptom may be related to his hypertension. It may well be that he suffered such an episode immediately before arriving at the intersection such as to impair his concentration.
I also believe that his war caused anxiety/nervous condition may have aggravated the condition which caused him to jerk his head leading to a loss of concentration and that this may have also played a part in the collision.
6. There were five hypotheses submitted during the first review, one of which was the deceased suffered an impairment of concentration immediately prior to the collision which had its origin in excessive alcohol consumption.
7. In the present application, Mr Green relied on an opinion expressed by Dr Michael Epstein in a report of 22 December 2005. Indeed he relied entirely on the concluding paragraph of that report as the hypothesis in these proceedings namely,
It does seem however that his drinking habits were probably war caused and there is a reasonable hypothesis pointing to the effects of alcohol impairing his concentration and contributing to the collision. For these reasons, in my view, his death does satisfy the criteria for being regarded as war caused.
Dr Epstein reaffirmed that opinion in a subsequent report of 18 April 2006.
8. Mr Green submitted:
. . . the kind of death we are articulating is the kind of death whereby a person who drinks heavily has his concentration impaired or affected such that death may be occasioned as it was when the vehicle of which we was - that he was in charge of, collided with the Spirit of Progress. (Transcript pages 29 and 111 and written submissions at paragraphs 26 – 32)
9. In these circumstances it was submitted that there was no applicable Statement of Principles (“SOP”) and the reasonableness of the hypothesis is to be determined by reference to s 120 (1) and (3) of the Act and the law as determined in Bushell v Repatriation Commission (1992) 175 CLR 408 (Bushell); and Byrnes v Repatriation Commission (1993) 177 CLR 564(Byrnes).
10. Support for the connection between service and a resultant alcohol habit was submitted as being established by a statement of the deceased’s brother, Jack Codd, who in a statement found at page 82 of the T‑documents recorded that the late Mr Codd did not consume alcohol prior to enlistment but was observed to be drinking to excess subsequently. The statement concluded “his drinking habit continued for the rest of his life”. Support was also advanced by a statement of Major M J Dwyer in a statement found at page 83. Major Dwyer said that he knew the late Mr Codd for 16 years prior to his death and frequently associated with him at the Benella RSL. Major Dwyer said that the late Mr Codd “. . . had to a degree a drink problem, he was not in my opinion an alcoholic but was a very consistent drinker who was very easily and quickly affected by strong drink, he may have been reasonably classified by some as a two pot screamer”.
dr michael epstein
11. Dr Epstein provided two reports of 22 December 2005 and 18 April 2006 both of which were received into evidence. He agreed that he formulated his opinions as expressed in the reports by reference to a number of documents that were made available to him and by reference to an interview with Mrs Codd on 22 December 2005. He said that his conclusions that the deceased had been “drinking heavily” the night before his death and a history by the deceased of “heavy alcohol consumption” would probably have come from Mrs Codd.
12. Dr Epstein was of the opinion that the late Mr Codd was a chronic alcoholic. He said that by reason of his experience in treating persons with alcohol addiction, the deceased – as he had observed in other persons under his care – would have suffered from an impairment of memory and concentration no less on the occasions where he had not been drinking. He said the deceased’s ability to sleep would have been impaired by reason of being drunk the night before and hung over on the morning of the accident. He said that his energy levels would have been reduced. He did acknowledge that there were other factors that may have contributed to the death of the deceased namely; the presence of trees at the intersection, the physical layout of the intersection and the degree of visibility of the train. He also acknowledged that it would appear that the deceased was affected by sun glare and may have been confused about the timing of the train.
13. Despite an attempt by Ms Macdonnell to have Dr Epstein address the DSM IV criteria for alcohol dependence, Dr Epstein said that so far as he was concerned the deceased exhibited many features common to chronic alcoholics namely; adverse health, negative effect on family life and reduced working capacities. He said all of those features pointed to a person who was a chronic alcoholic. He acknowledged that he did not have a history from Mrs Codd of the quantities of alcohol consumed by her husband. Nonetheless he remained of the opinion, based on his interview with her, that her husband did consume alcohol to excess. He said in his experience, partners of chronic alcoholics usually do not have precise details of quantities consumed.
14. Dr Epstein acknowledged the opinions expressed by Professor Drummer of the Victorian Institute of Forensic Medicine who provided reports at the request of the Respondent on 9 and 28 March 2006. In those reports, Professor Drummer concluded that despite the findings of a pathologist at the Coroners’ Court who analysed blood samples taken after the collision, the possibility existed that the deceased had a blood alcohol content of zero. He also acknowledged an opinion expressed by Professor Harper who, in a report of 4 June 2003, concluded that the blood alcohol content as recorded by the pathologist was “very low and . . . would not have caused impairment of concentration and senses immediately before the accident”. Dr Epstein said that the opinion of Professor Harper was more likely to apply in the case of a person who did not drink often, whereas persons who abuse alcohol chronically have affected concentration and behaviour. He said that the deceased would have slept poorly and have had poor concentration and efficiency on the morning of the collision – these being factors contributing to the accident – even if it was found that the previous consumption of alcohol had metabolised overnight and his blood alcohol content at the time of the collision was zero.
professor drummer
15. On the second day of hearing, Professor Olaf Drummer, the Head of Scientific Services at the Victorian Institute of Forensic Medicine gave evidence. He provided two reports to the Respondent’s solicitors of 9 and 28 March 2006. Principally, he had been asked to report – and give evidence at the hearing – upon the contents of a report completed by a senior medico-legal chemist dated 16 December 1968. That report is found within the Coroner’s Depositions lodged by the Respondent prior to the commencement of the hearing. The report is reproduced as follows (Exhibit 11 at page 9):
“16th December 1968
On the 11th December 1968, a post-mortem sample was received at this laboratory from S/C 11166.
The sample consisted of 2 tubes of blood and urine and was labelled,
‘Ronald CODD 7/12/68
Blood from Pleural Cavity/I.V.C.//Urine’
I analysed this sample of blood with the following results:-
Alcohol content 18 milligrams per 100 millilitres (pleural cavity)
Alcohol content 19 milligrams per 100 millilitres (I.V.C.)
Carbon monoxide saturation Nil %. This is considered a non-fatal concentration.
Urine: Alcohol content 43 milligrams per 100 millilitres
No amphetamine or methylamphetamine detected.
John E. Ryall
Chemist
I have checked the accuracy and the validity of the above results and having regard to the methods of analysis used the amount of alcohol found in the blood sample is equivalent to the minimum consumption of 1 seven ounce glass of Victorian beer for an eleven stone male.
A.B. RUSSELL
Senior Medico-Legal Chemist
16. In evidence, Professor Drummer said that the blood sample taken from the pleural cavity would have included other fluids which had accumulated in the area of the deceased’s chest. He concluded that the sample would not be representative of the circulating blood immediately prior to death but rather would have been contaminated by other bodily fluids. He said that he was unfamiliar with the expression “IVC” because it is not a term currently in use. He assumed that it was a sample taken from somewhere between the deceased’s abdominal and thoracic cavities.
17. Professor Drummer said that 18 milligrams per 100 millilitres – as recorded in the report of 16 December 1968 would equate to a blood alcohol content of .018. Equally, the finding of an alcohol content of 19 milligrams per 100 millilitres as recorded would equate to a blood alcohol content of .019. However, it was his opinion that those findings would not necessarily be an accurate measurement of the blood alcohol content at the time of the fatal collision. He said that the sample taken from the pleural cavity would have been contaminated with other bodily fluids. Additionally, it was his opinion – and upon which he placed considerable importance – that there was likely fermentation of ethanol subsequent to collection of the sample. He said that a process of fermentation occurs post-mortem by the combined effects of bacteria, the possible absence of refrigeration and the likely absence of preservative within the blood collection tube. He also noted that there were a number of days intervening between the taking of the sample and the receipt of it at the medico-legal laboratory.
dr lester walton
18. Dr Walton is a consulting psychiatrist who provided two reports at the request of the Respondent. In his first report of 8 November 2005 – having been supplied with a large number of documents – Dr Walton commented upon the opinions expressed by other doctors, particularly doctors Whittaker and Holwill with respect to diagnosis. Dr Walton reported that he faced difficulty in reaching an opinion as to diagnosis because he had been unable to examine the deceased and was dependent upon the accuracy and interpretation of information given to him by Mrs Codd and by the authors of other documents. He concluded that the deceased appeared to have been a person who was of “anxiety prone disposition prior to his military service” but that had been “aggravated by the military service”. He thought that the “likely traumatic experiences to which the veteran was exposed in New Guinea…on the balance of probabilities amounted to a significant aggravating factor”. On balance he thought it was “more than probable” that the deceased suffered from a generalised anxiety disorder. He also thought that the documents indicated that the deceased was “prone to drinking to excess on a regular basis”. However, he acknowledged that there would be “difficulties” in finding that all the criteria with respect to the DSM IV diagnosis of alcohol dependence or alcohol abuse would have been met.
19. With respect to the hypothesis (as he understood it) of anxiety affecting an attention span and concentration, Dr Walton reported that the deceased appeared to have been a person who was anxious and hyper-vigilant. On that basis, he said that it would be “expected that usually in a potentially dangerous situation of a level crossing, a person with an anxiety disorder may well be more than usually careful and certainly would not be compromised by significantly impaired concentration”. Additionally, he recorded that in an advanced state of anxiety, attention span and concentration could be impaired because a person is “very distractable, unable to focus and pre-occupied with their own symptomology”. However, in those circumstances he expected that the anxiety then suffered would have been observed by lay persons of which he found no evidence from the documents.
20. Dr Walton concluded:
“In my opinion there is no need to reach beyond the physical phenomena to explain this veteran’s tragic death. The evidence is that he did not have his usual sunglasses available to him and there was strong sun glare obscuring the side of the train. There is simply no need to implicate psychiatric factors. To the extent that the veteran’s psychiatric condition may have relevance, in my opinion, it is more likely that the condition would have lessened the likelihood of such an accident”.
21. In his second report of 6 June 2006, Dr Walton responded to a number of questions that had been put to him by the Respondent’s solicitors subsequent to the first day of hearing.
22. In the latter report, Dr Walton concluded that the alcohol concentration in the deceased at the time of the accident did not permit a conclusion as to whether – or in what quantities – alcohol was consumed on the previous evening. That opinion was expressed because alcohol tolerance and metabolism is dependant on whether a person has liver damage. Dr Walton reported that initially a person’s liver actively metabolises alcohol and a person could be expected to drink more alcohol than would be otherwise expected. However, in the case of a person who has regularly drunk to excess, there may be liver damage and the ability to metabolise alcohol is diminished.
23. Dr Walton reported that he could find nothing from the documents that the deceased had any problems with his memory or concentration. Additionally, he could find nothing to satisfy him that the deceased was behaving in any abnormal fashion on the day of his death. Dr Walton concluded that there was nothing which clearly pointed to the deceased suffering a hangover on the day of the collision but he thought that by reason of “a measurable amount of alcohol remaining in his body” some hours after having consumed it, the deceased may have suffered from a hangover and if it existed it would have been of “mild intensity” but would not have made any materially contribution to the accident – indeed he thought that it would be more likely that a person with an hangover would have been aroused and “more than usually alert and hyper-vigilant”.
24. Whilst concluding that practitioners might differ as to the meaning of the expression “chronic alcoholic”, Dr Walton concluded that with respect to “mental and behavioural functioning” in relation to the operation of a motor vehicle “it is the concentration of alcohol in the brain at the material time which is the relevant factor”.
25. In relation to the statement of Major Dwyer, Dr Walton concluded that the deceased did drink excessively “in a sense where he was adversely affected by alcohol”. However, he was unable to conclude that a diagnosis could be made of Mr Codd being alcohol dependent or an alcohol abuser.
26. Dr Walton was asked to comment upon SOP Instrument No 76 of 1998 entitled “Alcohol Dependence and Alcohol Abuse”. He reported that it was “at least possible that that definition had been satisfied”. However, he concluded that there was no information available to him which would suggest that the diagnostic criteria within the SOPs had been satisfied within the relevant two year period before clinical onset.
27. In conclusion, Dr Walton noted the opinion expressed by Dr Epstein that the effects of alcohol had impaired the deceased’s concentration and had contributed to the collision. Dr Walton reported that he had difficulty understanding how that opinion could be expressed having regard to the contents of his reports of Dr Epstein’s evidence on the first day of hearing.
28. When called to give evidence at the second day of hearing, Dr Walton was not asked any questions in examination-in-chief other than to confirm that the opinions expressed by the second report were true and correct.
29. In cross-examination, Dr Walton said that it was probable that he did not read the witness statement of Mr Elvish, the train driver, when he prepared his second report. In that report, at paragraph 10, Dr Walton recorded “My reading of the materials does not lead me to any conclusion that Mr Codd’s powers of concentration were impaired at the time of the collision”. By reason of that opinion, Dr Walton was re-acquainted with the contents of the statement of Mr Elvish namely, that the train had been travelling at 59 to 60 miles per hour, that its whistle had been operating over a period of 200 yards before the intersection, that its front light was operating, that Mr Codd was observed to be looking straight ahead, the weather and visibility was good. Dr Walton said that it would appear that the deceased had ignored warning signals, which were not subtle and there had been a “lapse in his proper focus of attention”. Dr Walton said that he had intended to refer to an impairment of concentration “which derived from psychiatric phenomena” (Transcript, page 84).
30. Additionally, Dr Walton said that alcohol intake would be relevant in assessing not only powers of concentration but mental state and behaviour. He said that one seven ounce glass of beer could “theoretically” impair concentration but “realistically” it would not.
31. In re-examination, Dr Walton further qualified the opinion expressed by him at paragraph 10 of his report and said that it would not appear that the powers of concentration of Mr Codd were significantly or meaningfully or substantially impaired, nor were those powers of concentration impaired by “a recognised psychiatrically behavioural phenoma”.
32. In terms of why a person might not respond to a warning signal – for example, a train whistle – Dr Walton said there could be a myriad of reasons why a person might be distracted from “fully concentrating” at any particular time.
submissions
33. In the decision which followed the hearing of the application in 2003, a number of findings were made concerning the service of the deceased, the subsequent affect upon him of that service and the manner in which the deceased was driving his vehicle immediately prior to the collision. To the extent that those findings were not inconsistent with the decision of Ryan J who upheld the appeal, Mr Green adopted them.
34. It was noted that Dr Walton, was of the view that from the materials that had been made available to him, the “powers of concentration” of the deceased were not impaired at the time of the collision. That opinion was attacked with some vigour by Mr Green. It was noted that Dr Walton qualified that (written) opinion in his oral evidence. Additionally it was submitted that a person driving a motor vehicle across a railway intersection would not ignore the warning whistle of an oncoming train if “ordinary concentration (was) being applied”.
35. It was also submitted that the deceased was intoxicated on the evening prior to the collision and – irrespective of the findings made with respect to the blood samples – a finding should be made that the deceased’s concentration was affected by the quantity of alcohol consumed on the previous evening.
36. It was submitted that the deceased commenced consumption of alcohol during or subsequent to his war service and that consumption was attributable to service. It was submitted that he drank alcohol frequently and excessively.
37. Upon that history – which was submitted should be found as a fact – Mr Green relied on the opinions expressed by Dr Epstein. He was of the opinion that the deceased was a chronic alcoholic and in his experience, persons who drink alcohol to excess have problems with memory and concentration. Dr Epstein was of the opinion – which Mr Green submitted should be adopted – that having consumed alcohol heavily on the previous evening –the cognitive function of Mr Codd would have been affected on the following morning, irrespective of his ability to tolerate or metabolise an excessive quantity of alcohol. Whilst not submitting that alcohol was the only factor which may have contributed to the collision, Dr Epstein was of the opinion that it was a factor contributing to it because of the affect it would have had upon the deceased’s ability to drive a motor vehicle. On balance it was submitted that the evidence of Mrs Codd, Dr Epstein and the train driver permit a finding that a reasonable hypothesis exists connecting the service of the deceased with the circumstances of his death. That hypothesis was put on the basis of the absence of any SOP. It was submitted that the reasonableness of a hypothesis is to be determined by reference to the High Court decisions of Bushell, Byrnes and East v Repatriation Commission (1987) 16 FCR 564. The “kind of death” had its origin in the opinion expressed in the report of Dr Epstein received into evidence namely; a person who drinks heavily has impaired or affected concentration which may have occasioned the fatal collision when the vehicle being driven by the deceased collided with the Spirit of Progress train. (The “kind of death” was ‑ subsequent to the hearing – amended in a written submission lodged by Mr Green. The “kind of death” as subsequently submitted will be referred to later in the reasons for decision).
38. Ms Mcdonnell on behalf of the Respondent submitted that there must be a finding of the death of Mr Codd being attributable to, or arising out of, his military service. Additionally, the whole of the material before the Tribunal must be considered in order to determine whether a hypothesis has been raised which is reasonable. Attention was drawn to a number of leading Federal Court and High Court cases dealing with those legal principles.
39. With respect to the “kind of death” as had been submitted by the Applicant’s representatives during the hearing, Ms Macdonnell submitted that enquiry needs to be made of the evidence given to the coronial inquiry in 1969. It was submitted that the matters emerging from the Coronial Depositions indicate that the deceased was driving a vehicle with which he was not familiar and he did not have his sunglasses which he needed and which he regularly wore. Additionally it was submitted that the construction of the intersection between Witt Street and the railway line would point to the deceased having to either turn to a significant degree or have his vision obstructed of the oncoming train. It was also submitted that the position of the sun in the sky at the time of the accident – consistent with the evidence of the driver of another truck – would have caused the deceased to either be blinded by it or so disorientated that he would not have been able to observe the intersection itself.
40. Additionally it was submitted that the train on the morning of the accident was running 15 minutes late and in those circumstances the deceased would not have expected the train to have been at the intersection at the time that he approached it. Additionally it was submitted that the deceased was driving up an incline towards the intersection, that the vehicle would have probably been in first or second gear and the noise from the engine of the vehicle he was driving would have excluded the noise coming from both the train and from its warning whistle.
41. It therefore followed – on these submissions – that the above matters which emerged from the Coronial Inquiry, together with the observations of the train driver do not point to any permissible finding or inference that the deceased’s concentration was impaired.
42. With respect to the evidence heard and read concerning the samples taken from the deceased, it was submitted that there should be a finding that there was no alcohol present in the deceased at the time of death or, if there was, it would have been at such a minimal level as to not have contributed to the accident. Additionally it was submitted that there was no evidence of the quantity of alcohol consumed by the deceased during the previous evening and no evidence that he was hung-over on the morning of the collision. It was submitted that the evidence was deficient in connecting the deceased’s service with alcohol consumption and equally there was deficiency in the evidence concerning the quantities of alcohol consumed by the deceased over the years.
43. It was also submitted that in the event of a finding that the deceased had consumed alcohol heavily over the years and if there was also a finding that he was a chronic alcoholic – consistent with the evidence of Dr Epstein – inquiry will then need to be made of an applicable SOP with respect to alcohol abuse or alcohol dependence. This submission was put on the basis that chronic alcoholism – being the pre-cursor to loss of concentration – would only occur if there had been a previous history of alcohol abuse or alcohol dependence. It was submitted that because such a finding would be necessary in order to find chronic alcoholism, a SOP must be satisfied in order to uphold the hypothesis. It was also submitted – emphatically – that the opinions expressed by Dr Epstein in these proceedings should be dismissed in favour of the opinions of Dr Walton.
44. In conclusion, it was submitted that every link or element constituting the reasonable hypothesis advanced by the Applicant was not established and a finding would be impermissible of the deceased having an impairment of concentration at the time of the collision which had its origin in alcohol consumption referrable to prior military service.
45. During the delivery of the submissions of Ms Macdonnell there was considerable discussion concerning the interpretation of street and road maps of the precinct within which the railway crossing was located. It would appear that the deceased had been travelling in an easterly direction – and therefore facing the sun – whilst travelling along Saleyards Road. He then made a right hand turn into Witt Street, being the street which intersected with the railway line. Whilst in Witt Street and therefore whilst approaching the railway crossing, he would not then have been travelling in an easterly direction and would not – whilst in Witt Street – been facing the sun. Mr Green, by way of reply, submitted that the deceased was therefore not blinded by the sun as he approached the intersection. Ms Macdonnell submitted – by way of reliance upon the evidence of Mr O’Connor at the Coronial Inquiry that he was “completely blinded” by the sun whilst in Saleyards Road – and it was likely that the vision of the deceased would not have been recovered whilst travelling in Witt Street before entering the intersection with the railway line.
46. Mr Green acknowledged that there may be competing hypotheses in the present application but it is enough that a hypothesis, if found to be reasonable, would be sufficient to have the decision under review set aside. Additionally it was submitted that inferences can be made in support of the hypothesis. Mr Green pointed to a number of passages in documents lodged in support of the contention that the deceased did consume alcohol excessively and frequently which was responsible for him having an impairment of concentration immediately prior to the fatal collision. This was evident by him entering upon a railway crossing with which he was familiar and – consistent with the evidence of the train driver – not turning his head to the left or the right immediately before impact.
47. Subsequent to the conclusion of the hearing, Counsel for the Applicant wrote a letter to the Tribunal withdrawing the submission made during the hearing as to the “kind of death” and submitted that the “kind of death” for the purposes of this application was “death by road accident”.
48. A copy of that letter was forwarded to Counsel for the Respondent. Subsequently the solicitors for the Respondent delivered a letter to the Registrar (of three pages with maps attached which contained further submissions).
49. On the basis of a map attached, it was submitted that the distance between the intersection of Saleyards Road and Witt Street and the intersection of Witt Street with the railway line would have been approximately 50 yards. It was noted that Mr O’Connor in his evidence to the Coroner had said that the sun had interfered with his vision as he turned into Witt Street out of Saleyards Road and he did not see the impact between the train and the vehicle driven by the deceased. On that basis it was submitted that Mr O’Connor’s vision was so affected by sunlight that he suffered from ‘temporary sun blindness” to a degree that prevented him from observing the collision some 50 yards ahead. It was estimated that the deceased would have taken less than six seconds to drive from the Saleyards Road intersection to the railway line if he was travelling at between 15 and 20 miles per hour. In that period of time it is unlikely that the deceased would have recovered from temporary sun blindness which, it was submitted, he would have suffered from – having regard to the evidence of Mr O’Connor – and having regard also to the evidence to the Coroner that the deceased was not wearing sunglasses which was his usual habit.
50. On balance it was submitted that by reason of the train being 15 minutes late, the absence of any evidence concerning the acuity of the deceased’s hearing, whether his windows were up or down, whether the vehicle was fitted with brake lights or, if they were, whether they were working all points to a finding being impermissible of material supporting the deceased having an impairment of concentration.
conclusion and reasons for decision
51. Mrs Codd asserts that a reasonable hypothesis exists connecting the circumstances of her husband’s service and his death. Section 120(1) and (3) of the Act applies subject to modification by s120A of the Act. The Veterans’ Affairs 1994/1995 Budget Measures (Legislation Amendment Act 1994) introduced s120A into the Act thereby introducing the Repatriation Medical Authority and Statement of Principles regime. Section 120A(3) of the Act provides that a hypothesis connecting death with service will only be reasonable if there is a SOP determined under s196B of the Act which upholds the hypothesis. Section 120A(4) provides that subsection (3) of the Act does not apply with respect to a claim arising out of the death of a veteran if the Repatriation Medical Authority has not determined a Statement of Principle under s196B(2) in respect of the “kind of death” met by the person.
52. In this application the “kind of death” asserted by Mrs Codd was “death by road accident”. A Statement of Principle has not been determined by the Repatriation Medical Authority with respect to the “kind of death” asserted in this application.
53. I should pause at this stage and refer to the Full Federal Court decision of Repatriation Commission v Deledio (1998) 49 ALD 193 where at 206 the Court recorded – in a summary of the four stages of analysis to be adopted in order to determine whether a hypothesis is reasonable ‑ that if a Statement of Principle is not in force, the hypothesis advanced by a claimant will not be reasonable and the application must fail. With respect to their Honours, s120A(4) applies. A number of Federal Court decisions have also indicated that the conclusion reached by their Honours in Deledio (as recorded above) is incorrect (refer Repatriation Commission v Hancock [2003] FCA 711 at paragraph 10; Bull v Repatriation Commission [2001] FCA 1832 at paragraphs 14 and 15; Woodward v Repatriation Commission [2003] FCAFC 160 at paragraph 55).
54. For the purposes of the discussion that follows concerning the “kind of death”, the Coroner at Benalla on 30 June 1969 decided that the cause of death was “from the effects of injuries accidentally sustained at the Witt Street Benalla railway crossing when a motor vehicle being then and there driven by him came into collision with a train being driven by one Alan Elvish”. That finding is not inconsistent with the “kind of death” advanced in this application namely; “death by road accident”. I am satisfied that the death of the deceased was by road accident.
55. The expression “kind of death” is unusual. It is not an expression, in my experience, used by persons when describing the circumstances or cause of a person’s death. Nonetheless the expression is found in the legislation without definition.
56. Selway J in Hancock decided (paragraph 9) “In determining the `kind of death', proof is on balance of probabilities”. As referred to earlier I am satisfied and find as a fact, that the “kind of death” of the deceased was by “road accident”.
57. Tamberlin J did discuss the concept of “kind of death” in Repatriation Commission v Towns [2003] FCA 1262 (“Towns”) at paragraph 30 in the following terms:
30 Thirdly, the expression "kind of death" is wide reaching. It does not, in terms, require identification of the prime cause of death in a medical sense, but is sufficiently broad to include death which occurs in a particular temporal or circumstantial context, such as death occurring "suddenly" or in a particular location or set of circumstances. The expression "kind" does not mandate a determination of the precise medical causation of the death. A death, for example, might be characterised as a death at sea, or a death in circumstances in which there has been an exposure to the elements. This could properly be described as a kind of death using that expression in a broad sense.
58. Recently Branson J in Brown v Repatriation Commission [2006] FCA 914 said that the concept of “kind of death” had been considered in Hancock and Towns but “The Court has not yet sought to provide definitive guidance on the meaning of ‘kind of death’ . . .”. Her Honour also decided that her decision in Brown was “not an occasion for the provision of that definitive guidance.” (refer paragraph 28).
59. The Respondent submitted in the present application that –
Even if there is no SoP concerning the kind of death suffered by the veteran, any link in the hypothesis (or sub-hypothesis) which is dependent on the existence of a particular injury or disease, must be supported by the SoP (if any) concerning that injury or disease. (refer written submissions at paragraph 16).
60. That contention was put on the basis that the motor vehicle accident which caused the fatal injuries occurred because the deceased had an impairment of concentration which had its origin in him being a chronic alcoholic. It therefore followed – on the submissions – that chronic alcoholism arises out of alcohol dependence or abuse for which there is a SoP namely, Instrument No 76 of 1998. Accordingly, Mrs Codd must also satisfy a factor within that Instrument that must exist as a minimum and which is related to service before it can be found that a hypothesis has been raised which is reasonable connecting the death with the circumstances of service.
61. This issue was also discussed considerably in closing oral submissions. The relevant part of the Transcript is reproduced as follows (Transcript, page 157 – 159):
But the important thing for the Tribunal is that if Dr Epstein's opinion is premised on Mr Codd being a chronic alcoholic then one must go to the SOP. Dr Walton was asked what was meant by chronic alcoholic and he said in response to the question, and this is at paragraph 11 of exhibit 4, that chronic alcohol is a term in medical use and it encompasses – might encompass both alcohol abuse and alcohol dependency rather than making the distinction between the two, which is what happened in the DSM4 and the Statement of Principle. Now, once a SOP is determined in relation to a particular condition it covers the field in relation to that condition and that is what the Full Court decided in Woodward v Repatriation Commission.
So if Mr Codd is a chronic alcoholic his drinking can only be connected to his service if all of the elements in the SOP concerning alcohol dependency and alcohol abuse are pointed to by the material. In fact if - this is a very important point for the Tribunal, can I take the Tribunal to the SOP.
MR HANDLEY: Yes. I understand what you say that because the applicant relies on the diagnosis of chronic alcoholism, that the statement of principle should be considered.
MS MacDONNELL: Yes, and must be considered.
MR HANDLEY: Why should it be considered as opposed to DSM4?
MS MacDONNELL: Because where an SOP covers the field you must – it must be supported - any assertion or hypothesis of connection between that condition and service must be upheld by the SOP. The SOP covers the feel (sic) for alcoholism. The only thing that is excluded from the SOP is that – the SOP was in the T documents previously. And this it really is a very important point because he - SOP defines alcohol dependence, it defines alcohol abuse and then it says - - -
MR HANDLEY: Well, so does DSM4.
MS MacDONNELL: Yes. Yes. If you are making a diagnosis you can certainly go to DSM4 and you find the same criteria and if one follows the decision of Ryan J in the same matter on appeal, he says that whether someone's suffering from a disease at the time of death is to be found on the balance of probabilities. So, yes, you would have to go to the DSM criteria which are the same as are set out in the SOP. But the significance is it is not open to the applicant to say, "He is a chronic alcoholic and we rely on a connection for his drinking to service but you don't have to go to go to the SOP".
MR HANDLEY: Mr Green finished this morning, I've written his words carefully because I anticipated this argument:
We are not putting the case that the deceased was dependent upon or absurd (sic) alcohol. We say he was a heavy drinker.
MS MacDONNELL: Yes, and it doesn't - with respect to my learned friend, it doesn't matter how he puts his case. It is what, as a matter of law, is the approach the Tribunal should take and what has arisen on the material is you have one witness who is saying - well, I say he is a chronic alcoholic. I say he is alcohol dependent and I am the person who advances the hypothesis and that is the basis I am advancing the hypothesis on. That is what the effect of Dr Epstein's evidence is. Too try and argue that the man was suffering the effects of hangover would have been affected, wouldn't have had a good night sleep, he has sought to say, it is because he is a chronic alcoholic.
And the importance of the SOP is you have the - it picks up the DSM4
definitions of alcohol dependence and alcohol abuse. It then says:
The definitions for alcohol dependence and alcohol abuse exclude acute alcohol intoxication in the absence of alcohol or alcohol abuse.
Now what that means is that if this Tribunal were to find that the material pointed to Mr Codd being acutely intoxicated the night before, such intoxication cannot be causally related to his service. That is the effect of section 196 of the Veterans Entitlement Act and the SOP.
MR HANDLEY: What if I were to find that he was drunk the night before?
MS MacDONNELL: Well, if you found he was drunk the night before you would be finding that he was intoxicated. You would be finding that there was an episode and there would be absolutely nothing to connect that to his service.
62. In his reply, Mr Green made the following submissions with respect to the contention of the Respondent that a SoP should be considered (Transcript, page 164):
We had surmised for the greater part of this submission that our learned accepted the legal basis on which we were running this case, but we now apprehend that she doesn't do that; but can we say this. The reason we stand outside the statement of principle that bears upon alcohol is that the applicant cannot bring herself within the criteria with respect to alcohol abuse or alcohol dependency in that prescription. That being so, that statement of principle does not apply to the circumstances of this case.
Put another way, it is virgin territory unprescribed by an instrument of the kind that our learned friend hangs her hat on. The real complaint is that we have taken ourselves outside the paradigm of the RMA universe. A heavy drinker, which on the whole of the material Mr Codd was, doesn't bring himself within those instrumental prescriptions. That is the case we put at the threshold, and that is the case we put at 5 o'clock on the last day.
Now, if that is inconvenient to the Repatriation Commission, so be it. But in principle it is right, and on a correct construction of the legislation it is right. And we took care in our written submission on day one, which our learned friends had the benefit of for about five weeks, to develop that argument. We laid it bare five weeks ago and nothing our learned friend has put to you has demonstrated any invalidity in the steps of reasoning that we undertook to show how we get to that unprescribed territory. It is for all those reasons we submit that you should find that the death concerned was war caused.
63. In Towns, the veteran was almost 74 years of age and suffered the accepted conditions of post-traumatic stress disorder, depressive disorder, alcohol abuse, bilateral sensorineural hearing loss, solar keratoses and Basal cell carcinoma. In August 1998, the deceased was reported as missing. He was last seen on 12 August 1998. His body was found in bushland on 1 October 1998. The Coroner found that the deceased died “on or about 12 August 1998 . . . and that he died of natural causes the aetiology is unknown”. The Tribunal at first instance decided that a SoP “Sudden Unexplained Death” (No 99 of 1996 as amended by No 185 of 1996 and No 18 of 2002) did not apply because in the absence of an ability to determine when death took place, the factors within the Instrument could not be satisfied. The Tribunal determined therefore that the liability of the Respondent should be determined pursuant to the legislative regime existing before 30 June 1994 when SOPs were introduced. In those circumstances Tamberlin J decided that the matter should proceed for decision by reference to the provisions of s120(1) and (3) of the Act. That finding was consistent also with the decision in Woodward and Hancock.
64. The Respondent asserted that s120(3) of the Act is affected by s120A, particularly s120A(3) which provides that a hypothesis connecting a person’s death with service will only be reasonable if a Statement of Principle is in force pursuant to s196B(2) and which upholds the hypothesis. It was also submitted that each element of a hypothesis or a sub-hypothesis must satisfy a Statement of Principle even if a Statement of Principle has not been issued with respect to the “kind of death” as asserted by a claimant widow. With respect I disagree with those contentions. It seems to me that the provisions of s120A(3) are being confused with the provisions of s120A(4).
65. Mrs Codd contends that she is entitled to rely on the provisions of s120A(4) with respect to a claim made by her arising out of a death of her husband because the Repatriation Medical Authority has not determined a Statement of Principle in respect of the “kind of death” met by him. Section 120A(3) would apply only, if in order to deem a hypothesis to be reasonable, a Statement of Principle has been determined under s196B(2).
66. Reliance upon the contentions of the Respondent was sought by the Full Federal Court of Repatriation Commission v Hill (2002) 69 ALD 581, particularly at paragraph 57. In my view the Respondent is not entitled to comfort from that paragraph. The application brought by Mr Hill was issued after the introduction of the 1994 amendments and was a claim with respect to injuries which were the subject of SOPs. The focus of the Court was upon the law applying after 1994. At paragraph 57 the Court decided in the following terms:
[57] Whatever the situation may have been in relation to claims before 1 June 1994, the effect of s 120A(3) (where there is an SoP under s 196B(2)) is that a hypothesis is reasonable only if it is upheld by the SoP. Pursuant to s 196B(2), the SoP must set out “the factors that must as a minimum exist” and “which of those factors must be related to service”. The result is that, where it applies, the SoP prescribes the essential content of what is a reasonable hypothesis, for s 120(3) purposes, capable of connecting the particular kind of injury, disease or death with the circumstances of a veteran's particular service. In order to satisfy ss 120(3) and 120A(3), a hypothesis relied on by a veteran to support a pension claim must be supported by material pointing to each element that the SoP makes essential for the hypothesis to be reasonable. (my emphasis)
67. In the present case Mrs Codd does not seek to satisfy s120(3) and s120A(3). She asserts that the “kind of death” claimed by her is not the subject of a Statement of Principle. She does not need to advance supporting material “pointing to each element that the SoP makes essential for the hypothesis to be reasonable” because – necessarily – there is no Statement of Principle applicable in her claim under s120A(4). That sub-section applies to the exclusion of s120A(3) and does not diminish or dilute her entitlements to pursue this application under the provisions of s120(1) and (3) of the Act.
68. I am therefore satisfied that this application should be considered by the law prevailing prior to the introduction of the regime of SOPs and the Repatriation Medical Authority on 30 June 1994.
standard of proof
69. Section 120(1) and (3) of the Act may be summarised in the following terms:
(1)Where a claim under part (ii) for a pension in respect of the . . . death of a veteran relates to the operational service rendered by the Veteran the Commission shall determine that the . . . death of the Veteran was war‑caused . . . unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.
. . .
(3)In applying subsection (1) . . . 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 that the death was war‑caused . . . 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 . . . death with the circumstances of a particular service rendered by the Veteran.
70. In Byrnes at 571 the relationship between s120(1) and (3) can be summarised in the following terms:
(1) First, sub-s (3) of s 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s (1) of s 120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.
71. At p570 the Court also concluded:
In some cases, the hypothesis may assume the occurrence or existence of a "fact". That itself does not make the hypothesis unreasonable.
72. In Repatriation Commission v Bey [1997] 1347 FCA the Full Court recorded the following:
The method of applying s120(1) and (3) is now well established.
1. One commences with sub-s (3). The first step is to identify the hypothesis said to establish the causal link between the veteran's eligible war service and the death, injury or disease. Identifying the hypothesis is a question of fact.
2. The second step under sub-s (3) is to determine whether the hypothesis is reasonable. The material will raise a reasonable hypothesis if it points to some fact or facts which support the hypothesis (the "raised facts") and if the hypothesis can be regarded as reasonable assuming the raised facts to be true. In determining whether the hypothesis is reasonable the decision maker must identify the facts said to point to it.
3. Whether a hypothesis is reasonable is a question of fact. The decision maker must be satisfied that the hypothesis is reasonable after considering the whole of the material. Proof of facts and onus of proof are not in issue at this point.
4. If the decision maker concludes that the material raises a reasonable hypothesis, the third step is reached. Sub-section (1) must be applied, and the claim will succeed unless one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt, or the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.
In some cases the hypothesis may assume the occurrence or existence of a "fact". That itself does not make the hypothesis unreasonable: Byrnes at 570 and Critch v Repatriation Commission (1996) 43 ALD 574 at 577.
73. The hypothesis advanced on behalf of Mrs Codd was extracted from the report of Dr Epstein of 22 December 2005 (refer paragraph 7 earlier). In effect the hypothesis may be summarised as the late veteran developing a service related alcohol habit the effects of which impaired his concentration and contributed to the fatal collision.
74. I am satisfied that the hypothesis raised in these proceedings is reasonable because there is material pointing to it in support. There is material pointing to the deceased not consuming alcohol prior to service. There is material pointing to the deceased being engaged in stressful or unpleasant or gruesome activities within service. Additionally, there is material pointing to the deceased consuming alcohol subsequent to discharge from service and frequently drinking alcohol to excess, a habit he continued to the day prior to his death. The manner in which the deceased was driving his vehicle immediately prior to, and at the time of collision, points to an impairment of concentration. The above hypothesis is in my view reasonable because on the above material it is not fanciful, impossible, incredible or untenable. It has a degree of credibility, and it is not remote or tenuous. The material points to the hypothesis as being reasonable (refer East v Repatriation Commission (1987) 16 FCR 517). At this stage the applicant widow does not carry an onus and proof of facts are not in issue. Under s120(1) the death of the late Mr Codd will be determined as war‑caused unless one or more of the facts supporting the hypothesis are disproved beyond reasonable doubt or the truth of another fact in the material which is inconsistent with the hypothesis is proved beyond reasonable doubt thereby disproving the hypothesis beyond reasonable doubt.
75. One of the few facts which was not in dispute in these proceedings was the deceased having been engaged as a member of the Australian army between 1942 and 1946 during which he served in New Guinea as a stretcher bearer. Unlike a number of veterans who have brought applications in this Tribunal it would appear that the deceased did on some occasions discuss the circumstances of his service with his wife. In her statement of 5 December 2003 (refer earlier) she recalled him telling her of incidents where he had carried bodies and wounded men over long distances. Mrs Codd also recorded that her husband was a restless sleeper, that he suffered from nightmares and would scream in his sleep the words “don’t don’t” and “here it comes, here it comes”. He was also upset and irritated by sudden loud noises particularly from children. A similar history was obtained by Dr Whittaker and recorded by him in a report of 21 August 1990. Dr Whittaker also was of the opinion – based on his experience of 40 years as a psychiatrist working with the Repatriation Commission ‑ that persons who are intolerant of noise particularly from young children indicates emotional disturbance caused by war‑service. It was the experience of Dr Whittaker that the stimulus of the noise of young children is frequently associated by other veterans with yelling and screaming of wounded and dying men.
76. In the reasons for decision delivered by me in the first hearing of this application, I concluded that there had been many applications heard in this Tribunal by veterans who had served in New Guinea and their widows including many who had been engaged as stretcher bearers or who had been engaged in medical or like evacuation. In addition to the distress occasioned with attending to wounded or deceased comrades, stretcher bearers themselves would have been at risk because they would have been engaged in hostile areas. I have heard nothing from these proceedings which causes me to resile from the opinions then expressed. Indeed, Dr Whittaker took a history from Mrs Codd that her husband had notified her of occasions where he had been “carrying men who were shot to pieces for long distances and how he hated carrying out bodies particularly during storms”.
77. In her statement of 30 July 1985, Mrs Codd said that her husband started to smoke and to drink in the army in order to “steady his nerves”. Dr Whittaker in his report concluded that the deceased “self-medicated with alcohol in an attempt to reduce his nervous symptoms which had been aggravated by his war service”. In Critch v Repatriation Commission (1996) 43 ALD 574 (“Critch”) Merkel J, decided that an assumed fact can support a reasonable hypothesis if it does not arise in the abstract. In the present case, as applying also in Critch, the deceased was engaged in service which “involved fighting”. That experience “was likely to involve stress” (page 582).
78. Applications brought by widows are obviously denied the firsthand evidence of their deceased husbands but an examination of all relevant circumstances and the experience of having heard many other applications of New Guinea veterans permits an assumption, reasonably, that the service of the deceased caused or exposed him to stressful events; alcohol was consumed as a relaxant or as a means to avoid unpleasant thoughts or memories of the service; thereafter the consumption became habitual or he was dependent on it.
79. In a letter of 11 October 1990, Jack Codd confirmed that his brother did not consume alcohol prior to enlistment but he was surprised to see the deceased drinking after discharge because he was also drinking to excess. He recorded that his drinking habit continued for the rest of his life.
80. Mr M J Dwyer, in a letter of 11 October 1990, had an association with the deceased at the Benalla RSL. It was his opinion that the deceased was a “consistent drinker who was very easily and quickly affected by strong drink”.
81. In her statement of 5 December 2003, Mrs Codd said that her husband was a regular drinker when she first met him and he drank every day. She also recalled that he drank excessively if he was stressed, that there were frequent disputes because of his consumption of alcohol and so much money was “squandered” by him on alcohol that she needed to obtain employment to adequately provide for their family.
82. It was submitted by the Respondent that references at pages 111, 132, 138 and 151 of the T‑documents to the deceased’s drinking habit (as contained within a number of medical histories) demonstrated a very modest drinking habit. Additionally, it was submitted – by reference to the address recorded on the letter from Jack Codd – that there was no evidence that he lived in Benalla and accordingly there was no evidence that he had frequency of association with his deceased brother to permit him to form an opinion that alcohol was drunk to excess. It was also submitted that the letter from Mr Dwyer does not point to any connection between service and alcohol consumption nor does it point to any evidence of the abstinence from alcohol prior to enlistment.
83. With respect to the evidence and other documents associated with Mrs Codd, it was submitted that she did not meet Mr Codd until four years after his discharge and she had no knowledge therefore of him refraining from alcohol prior to enlistment or consuming it upon discharge. It was also submitted that there was no evidence from Mrs Codd of her husband ever bringing alcohol home or ever drinking in her presence. It was also submitted that there was an absence of evidence of the amount expended by the deceased on alcohol and by reason of the applicant initially not being engaged in paid work, and there being six children of the marriage, it could properly be inferred that substantial amounts of money were not spent on alcohol.
84. I am satisfied that the deceased did not consume alcohol prior to enlistment but did commence a life long alcohol habit, by reason of his service in New Guinea. I am satisfied that he did drink to excess after discharge and was drinking to excess when Mrs Codd first met him. It was her evidence – refer statement of 5 December 2003 – that her late husband did not drink alcohol before enlistment but commenced drinking during service. That information was made available to her by other members of her husband’s family. That evidence is consistent with the statement of Jack Codd. The history taken by doctors in the medical extracts referred to by the Respondent’s counsel is obviously incorrect. It is not unusual for veterans to under estimate or give false information to medical practitioners of smoking and drinking habits. But the histories taken as evident by those reports, are completely at odds with the evidence of Mrs Codd, Jack Codd and Mr Dwyer. The deceased was a person who drank alcohol frequently and often to excess. He was not a person who (for example) drank “a couple on pay day” (refer medical extract of 13 August 1959 and 13 October 1959) or four or five beers once a fortnight (refer medical extract of 2 October 1961). Similar histories were discussed (and dismissed) by Mrs Codd during the first hearing (Transcript, page 8). Contrary to submissions of the Respondent, there is evidence of the deceased being drunk on the evening prior to his death and hung over on the following morning (refer Transcript, first hearing pages 17 and18; statement of Mrs Codd 5 December 2003 – deceased described as “intoxicated”).
85. The deceased did not need to bring alcohol home or drink in the presence of his wife for her to be aware that he had been drinking and was, on occasions, drunk. His behaviour when drunk would be obvious and his consumption of alcohol on other occasions – if not drunk – would also be obvious by its smell. That there was disharmony in the marriage because of his alcohol consumption points to a habit of consistent and heavy drinking, not spasmodic or modest consumption as the Respondent submitted and as the medical histories suggested. Mrs Codd was in the best position to observe and be aware of her husband’s alcohol habit. She is, in my view, a witness of truth, who did not exaggerate, and her evidence is to be preferred.
86. During the hearing, evidence was heard from Professor Drummer from the Victorian Institute of Forensic Medicine. Professor Drummer had provided two reports which in part interpreted the pathologist’s report as found within the Coroner’s deposition. The contents of his report and his evidence have been referred to earlier. There was an issue that emerged in cross-examination of when the samples were analysed – relevant of course to any and if so, the duration of fermentation. The fatal collision was on 7 December 1968, the samples were “received” on 11 December 1968 and the report of the pathologist is dated 16 December 1968. With this in mind and by regard to the evidence of Professor Drummer, I am satisfied that the alcohol content as recorded by the Coroner’s pathologist is unsafe and probably incorrect. I am satisfied that the collection and storage methodology in 1968 was absent of any preservative and refrigeration between collection and analysis. It was likely in the intervening period between collection and analysis that there had been a process of fermentation which had increased the presence of any alcohol actually existing at the time of death. Whilst I am satisfied that on the evening prior to the fatal collision the deceased – having regard to the evidence of Mrs Codd – had been drinking heavily – I am satisfied that he metabolised the alcohol during the period between arriving at home at approximately 10.30pm and the collision at approximately 7.30am. In those circumstances any alcohol residue at the time of the collision would have been so miniscule to safely permit a finding that at the time of the collision the deceased was not under the influence of alcohol.
87. However, the hypothesis advanced by the widow was of an alcohol habit which caused an impairment of concentration. It was the evidence of Dr Epstein that the deceased probably was a chronic alcoholic. In his evidence, Dr Epstein said (Transcript, page 38)
I think it was quite clear he was chronic alcoholic and in my experience people who drink to the extent that he did for the period of time that he did often develop problems with memory and concentration, even if they have not been drinking that particular day. That is the first part. The second part is that the fact that he still had a residual blood alcohol, some 9 maybe 10 hours after he had stopped drinking, when you normally metabolise one or two glasses of beer per hour, suggests that he was still hungover. And although his blood alcohol level was not particularly high, nevertheless he was still coming down from what appears to have a binge when he was drunk the night before. And we know that people who have been drunk, that that affects their sleep, it affects their energy level and particularly for someone who is a chronic alcoholic and in my view his chronic alcohol consumption is likely to have been a factor contributing to his accident.
88. Dr Epstein was then about to be asked some questions concerning the DSM IV criteria for alcohol dependence and abuse when he interrupted in the following terms (Transcript, page 40):
Well, look you can ask me all those questions up hill and down dale, I don't care, the fact is, he was a chronic alcoholic and I think that is self evident. And if for some reason DSM4 doesn't meet those - then the DSM4 indicates the triumph of nonsense over the reality. I ran an alcohol clinic for a number of years and our criteria for a person who was an alcoholic was very clear. It was a person whose drinking interfered with their health, with the family life and their working capacity. And there is certainly no doubt that this interfered with his family life. I think it interfered with his work capacity and probably interfered with his recreational enjoyment.
89. Later, (Transcript, page 44), Dr Epstein was acquainted with an opinion expressed by Professor Harper that the blood alcohol content as evident by the Coroner’s pathologist would not have caused any impairment of concentration. It was the opinion of Dr Epstein that the recorded level of alcohol in a person who was not an alcoholic probably would not have impaired concentration but in the present case the deceased was a person who had a pattern of heavy alcohol consumption over many years. He concluded:
But all I am saying is that for a man who had been, from all the evidence that I was told, from all the information I was told, a heavy drinker for many years; he had been drunk the night before; he was driving at 8 o'clock in the morning having been drunk the night before. I would be surprised if that didn't have an effect on his behaviour.
90. Dr Walton provided two reports at the request of the Respondent and gave evidence in the proceedings.
91. In his first report he concluded that “There is simply no need to implicate psychiatric factors” and noted that the deceased was not wearing his sunglasses and on the information available to him it would appear that “strong sun glare” obscured the deceased’s vision of the train.
92. In evidence, Dr Walton was taken to his second report which he provided having become acquainted with the evidence at the first day of hearing. He concluded:
My reading of the materials does not lead me to any conclusion that Mr Codd's powers of concentration were impaired at the time of the collision.
93. In cross-examination, Dr Walton said that he intended, by his report, to conclude that any impairment of concentration did not derive from psychiatric phenomena (Transcript, page 84). Under further cross-examination he concluded that his preferred opinion was that the powers of concentration of the deceased were not impaired by “a recognised psychiatrical behavioural phenomenen” (page 90).
94. In my view both Dr Epstein and Dr Walton are eminent consulting psychiatrists who have both given sound opinions based on their professional expertise. It is not my role to choose or prefer one opinion over the other. That would be impermissible. As the High Court said in Bushell at paragraph 10:
. . . the case must be rare where it can be said that a hypothesis, based on the raised facts, is unreasonable when it is put forward by a medical practitioner who is eminent in the relevant field of knowledge. Conflict with other medical opinions is not sufficient to reject a hypothesis as unreasonable. . . .
95. I am satisfied that Dr Epstein may be regarded as “eminent in the relevant field of knowledge” not only by reason of his professional experience and qualification as a practising psychiatrist, but by reason of his prior experience of working in an alcohol clinic. He is a responsible medical practioner who gave an opinion within the ambit of his expertise (refer Bushell). By that experience and expertise he would have observed and had knowledge of the affect of alcohol upon persons who are chronic alcoholics. One such affect is impairment of concentration.
96. The Respondent submitted that there were many features surrounding the journey between the Country Road’s Board depot and the level crossing on the morning of the fatal collision which suggest that the deceased either did not suffer from an impairment of concentration, or was affected by other circumstances, those features being; driving a vehicle on that occasion which was not usually driven by him; not having an opportunity to observe the approaching train; the sun being in his eyes (he being a person who was known to suffer from sun glare and was not wearing his sunglasses); the angle of the intersection between the railway line and Witt Street caused an obstruction to the line of sight by the deceased; the train was running late; the noise from the truck obscured the sound of the warning whistle; the absence of any evidence of mechanical defect in the truck being driven by the deceased; the speed that the truck was driven suggested the deceased was being cautious and the absence of any evidence that the deceased was affected by alcohol, sickness or illness on the morning of the accident.
97. The contrary case on behalf of the Applicant, namely, that the deceased did suffer from an impairment of concentration was advanced on the basis that the late Mr Codd had consumed alcohol frequently and to excess for many years, that he was drunk on the night prior to the accident and was hung over on the morning of the accident; that he was familiar with the intersection between Witt Street and the railway line; he was known to be cautious when approaching intersections; the absence of brake lights points to him not having stopped despite his knowledge of that intersection; the presence of a train at or about that time; that he did not apparently react to the warning whistle of the train which had been operating for some distance prior to the intersection nor did he react to the headlight of the train; that he did not turn his head but was observed by the train driver to be at all times looking straight ahead.
98. There was no evidence as was asserted by the Respondent that the noise of the vehicle being driven by the deceased would have obscured the noise of the warning whistle of the train. There was evidence from Mr O’Connor who was driving a vehicle behind the deceased in Sale Yards Road that he had been temporarily blinded by the sun when facing east when driving in Sale Yards Road. It was assumed therefore that the deceased would also have been blinded particularly because he was not wearing his sunglasses. But Witt Street does not run in an East/West direction and the deceased would not have been facing the sun as he approached the railway crossing. There is no evidence that the deceased was affected by “temporary sun blindness” as was asserted in closing submissions. Indeed there is no evidence that the deceased was affected by sun blindness when driving in Sale Yards Road. Just as he may have been affected by the sun whilst driving before turning into Witt Street he may equally have lowered a sun visor within the cabin of the truck.
99. But in my view what is overwhelming is that the deceased approached an intersection of an interstate railway line with which he was very familiar – and where on the evidence of Mrs Codd he approached intersections with caution (refer statement of 5 December 2003), where his truck did not stop and where he was observed by the train driver to be at all relevant times looking straight ahead. He apparently did not acknowledge or react to the warning whistle of the train or the headlight of it. In combination, that pattern of driving suggests to me that the deceased was not concentrating. It suggests also to me – consistent with the evidence of Dr Epstein ‑ that his concentration was impaired.
100. In the circumstances, as recorded above, I am not satisfied that other “facts” submitted as inconsistent with the hypothesis, have been proved beyond reasonable doubt thus disproving the hypothesis, beyond reasonable doubt (refer Byrnes). To paraphrase s120(1), I am not satisfied beyond reasonable doubt that there are sufficient grounds to determine that the death was not war‑caused.
101. The decision under review should be set aside and in substitution it is decided that the death of the late Ronald Codd was war‑caused.
I certify that the 101 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior MemberSigned: .....................................................................................
Personal AssistantDates of Hearing 28 April and 7 June 2006
Date of Decision 24 October 2006
Counsel for the Applicant Mr N Green
Solicitor for the Applicant Williams Winter
Counsel for the Respondent Ms J Macdonnell
Solicitor for the Respondent Australian Government Solicitor
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