Codd and Repatriation Commission
[2004] AATA 876
•20 August 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 876
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V02/1406
VETERANS' APPEALS DIVISION ) Re KATHLEEN M. CODD Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr J Handley, Senior Member Date20 August 2004
PlaceMelbourne
Decision The Tribunal sets aside the decision under review and in substitution IT IS DECIDED that the death of Ronald Kevin Codd was war-caused. (Sgd) J Handley
Senior Member
VETERANS’ AFFAIRS – widows application – veteran killed in accident when struck by a train in course of his employment – served as a stretcher bearer in New Guinea – subsequent anxiety – whether SOP 1 of 2000 satisfied – whether deceased experienced a severe psychosocial stressor – whether anxiety precipitated an impairment of concentration – whether hypothesis reasonable – decision set aside
Veterans’ Entitlements Act 1986 (Cth) s8(1)(f), s120A(1) and s120A(3)
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
McKenna v Repatriation Commission (1998) 52 ALD 72
Bull v Repatriation Commission [2001] FCA 1832
Deledio v Repatriation Commission (1997) 47 ALD 261
Repatriation Commission v Hancock [2003] FCA 711
Benjamin v Repatriation Commission [2001] FCA 1879
Connors v Repatriation Commission (2000) 15 ALD 61
Repatriation Commission v McKenna (1998) 52 ALD 72
Repatriation Commission v Stoddart [2003] FCAFC 300
Stoddart v Repatriation Commission (2003) 197 ALR 283
Woodward v Repatriation Commission [2003] FCAFC 160
Dunlop v Repatriation Commission [2003] FCAFC 2001
Repatriation Commission v Deledio (1998) 49 ALD 193
East v Repatriation Commission (1987) 6 AAR 492
Statement of Principles Instrument No. 1 of 2000
Statement of Principles Instrument No. 76 of 1998
REASONS FOR DECISION
20 August 2004 Mr J Handley, Senior Member 1. The applicant applies to review a decision of the Veterans’ Review Board (“VRB”) made on 10 October 2002. The VRB then decided to affirm a decision previously made by the respondent on 6 April 2001 when it then determined that the death of the late Ronald Kevin Codd was not war-caused.
2. This application is brought by Mrs Codd as the dependent widow of the late Mr Codd who died on 7 December 1968 when a motor vehicle being driven by him in the course of his employment was struck by a train. Mr Codd was then 45 years of age.
3. Mr Codd was a member of the Australian Army between 5 October 1942 and 9 August 1946. During that time he served as a stretcher bearer in New Guinea and – upon the evidence heard and read – was apparently exposed to some horrific events. Anxiety type illnesses were not accepted as war-caused – it is not known whether they were ever claimed – but it would appear that the veteran did consume alcohol heavily subsequent to service and it was suggested by his widow in evidence that a relationship existed between service and alcohol consumption.
4. At the date of death the disabilities accepted as war-caused were infected tonsils, chronic eczema and mild labile hypertension. Disabilities which were rejected by the respondent were dyspepsia, presbyopia and decreased visual acuity.
5. The application is of some complexity. The basis on which the claim is put and the respondent’s basis for continuing denial of any liability will be referred to later in these reasons.
6. At the hearing, Ms Bornstein of counsel appeared on behalf of Mrs Codd and Mr Douglass appeared on behalf of the respondent. A number of documents were received into evidence. At the conclusion of the hearing, the application was adjourned to permit both representatives to lodge written submissions. The submissions were complex in nature and were of considerable assistance in comprehending this application, for which I am grateful to both Ms Bornstein and Mr Douglass.
coroner’s inquest
7. A coronial inquiry into the circumstances surrounding the death of the late Mr Code was convened at Benalla on 30 June 1969. The coroner found – at the conclusion of evidence – that the late Ronald Kevin Codd died on the seventh day of December 1968 at Benalla “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”. A report of a pathologist was received by the Coroner who, following an autopsy which showed extensive injuries, certified the cause of death as “multiple injuries including brain damage”. Blood and urine samples were taken for analysis of alcohol content. The analysis of the blood sample indicated an alcohol content of between 18 and 19mg per 100ml of blood and the analysis of the urine sample revealed an alcohol content of 43mg per 100ml of urine. A “senior medico-legal chemist” certified the above analysis as being the equivalent of “the minimum consumption of one 7oz glass of Victorian beer for an 11 stone male”.
8. At the inquest, a co-worker of the late Mr Codd, Reginald Reynor O’Connor, offered a deposition of evidence which recorded that on Saturday 7 December 1968 he arrived at the Country Roads Board (“CRB”) depot in Benalla (where he and the deceased worked) at 7.30 am. He noted that Mr Codd was then present at the Depot and both he and other co-workers were preparing to commence work. Mr O’Connor recorded that he, Mr Codd and other co-workers were intending that morning to service other CRB vehicles at another Depot. Mr Codd had an articulated licence and left the Depot driving a tanker truck. Mr O’Connor followed in another vehicle. He recalled that Mr Codd had difficulty starting the engine of his truck but eventually it did start and he followed at a distance approximately 250 yards behind Mr Codd. He recalled that a number of streets were travelled prior to approaching a railway crossing at Witt Street which did not have an attendant nor did it have boom gates or flashing red lights. He recalled that the blinkers of the vehicle being driven by Mr Codd were activated from time to time and approaching the railway crossing he recalled that the vehicle being driven by Mr Codd was travelling so slowly that he thought that it would stop. He recalled that as they approached the Witt Street railway crossing he observed an oncoming train and could hear its siren operating. As the train approached the crossing, Mr Codd’s vehicle continued to approach that crossing and was travelling at a slow speed and it did not stop. On the morning of the accident Mr O’Connor said that Mr Codd was “sober and quite normal prior to leaving the yard. He made no complaint of sickness or injury”.
9. In answer to questions asked of Counsel who appeared and represented Victorian Railways and Mrs Codd, Mr O’Connor said that the siren of the train had been activated for approximately half a mile prior to the intersection which had a large tree located nearby which would have caused a partial obstruction of view of any south bound train. He also recalled that the sun was rising and Mr Codd would have been facing it immediately prior to the collision. Mr O’Connor said that he did not observe the impact between the train and the vehicle being driven by Mr Codd because he was also facing the sun.
10. The driver of the train, Alan Elvish, provided a deposition of evidence. He said that he had been travelling at approximately 60mph when he passed a “whistle post” which was 440 yards from the Witt Street crossing. He had released the throttle of the engine and had it in an idle position preparatory to stopping at the Benalla station which is a short distance beyond the Witt Street crossing. When he was approximately 200 yards from the crossing – having had the whistle in full operation from the “whistle post” he observed a number of vehicles approaching the crossing and started to sound the whistle in a “series of short blasts”. He estimated both vehicles were approaching the crossing at 30mph when they were approximately 100 yards from it. When he was approximately 50 yards from the crossing – and of the belief that the first tanker (the vehicle being driven by Mr Codd) would not stop, he applied the train brakes into an emergency position. He recalled that he could observe Mr Codd driving his vehicle and also recalled that he was “looking straight ahead”. At the time of the impact Mr Elvish said that the train was travelling at 59mph and it came to a stop 630 yards beyond the point of impact. He then inspected the train and observed that its headlight was continuing to operate and was on high beam which he said had been activated since departing Albury earlier that morning. He said the accident occurred at 7.47 am, the weather was fine and dry with good visibility.
11. In answer to questions of representatives present at the inquest, Mr Elvish said that his position in the locomotive is located 12 feet from ground level and he had an unobstructed view of the intersection. He said there was no increase in speed of his vehicle from when he first observed the vehicle being driven by Mr Codd and he thought that having regard to the speed of that vehicle, it was capable of being brought to rest. Mr Elvish said that he decided to activate the whistle of the train by a series of blasts because it would be a deterrent to stop the vehicle being driven by Mr Codd and the following vehicle from travelling on to the crossing. He said that at no time did the vehicle being driven by Mr Codd come to a stop and it had continued to travel across the railway lines immediately prior to impact.
12. John Alexander Maxwell, the fireman on board the train gave similar evidence to Mr Elvish and confirmed that the headlight of the train was burning and on high beam immediately following impact.
13. Leila Margaret Gibbs provided a deposition of evidence which recorded that she was standing at her kitchen window approximately 100 yards to the North of the Witt Street level crossing from which she had an uninterrupted view on the morning of the collision. She said that she was in her kitchen and heard the train whistle of a duration which she thought was unusual. She looked through her window and observed a tanker vehicle approaching the crossing which was travelling slowly. She then observed the train was a short distance from the crossing. She then looked back towards the tanker vehicle and thought that the driver must have changed gear because the vehicle had slowed. Indeed she thought that the tanker vehicle was travelling “so slowly that I thought that at the speed he was moving at he would be on the tracks at the same time as the train passed onto the crossing and this is in fact what happened. I did not see any brake lights go on the tanker”. Mrs Gibbs observed the impact between the train and the tanker vehicle. In answer to questions of Counsel she said that the rising sun would have been in the eyes of the driver of the tanker at the time of the collision.
14. Brian Stanley Rogash is a mechanic who serviced motor vehicles owned by the CRB. He said that he serviced the vehicle being driven by Mr Codd on 30 November 1968 being the week before the collision. He also checked the brake lights and when he learnt of the mileage recorded in the vehicle after impact he found that it had travelled 500 miles in the week subsequent to the last service. In that week the driver of the vehicle (Kevin Cooper) had not made any complaints or reported any faults concerning the vehicle which was fitted with vacuum assisted hydraulic brakes and which also had exterior and interior sun visors. The clutch and the gears had also been serviced and were operating satisfactorily.
15. Stanley Cowton a constable of police attended the scene of the accident. He produced a number of photographs to the Coroner one of which depicted a large tree “that would of [sic] partly hidden deceased’s view of the train approaching together with the sun”. He conducted a number of measurements and drew certain conclusions and was of the opinion:
The deceased did not see the train approaching as he started to cross the line as the sun position could have blinded him and he may not have heard the train’s siren which was apparently sounded prior to and up ‘til the train reached the crossing due to engine or other vehicle noise not known to me. My investigations have failed to disclose any evidence that Codd was not suffering from any illness that he had commenced work after a full nights rest and there is no evidence that he had consumed or was affected by alcohol.
In evidence Mr Cowton said that he was unable to say in what position the gear of the tanker was positioned nor did he attempt to ascertain this because “the deceased’s body could have knocked it out of gear at impact”.
kathleen mary codd
16. Mrs Codd completed a proof of evidence dated 5 December 2003 which was received into evidence. It is reproduced in the following terms:
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 ma 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
theintersections.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 flare, 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 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.
17. In evidence Mrs Codd said that she first met her husband in 1950 and they were married in August 1952. She learnt from discussions with members of his family that Mr Codd had returned from New Guinea “as a changed man”. It was noted that he was “was very nervous” and whilst he was consuming alcohol in considerable quantities there was no discussion about it.
18. Mrs Codd said that her husband drank alcohol excessively if he was stressed but she was not familiar with quantities. She said that he was a member of the CRB road crew and most of each week he was away from home “on the road”. She understood that he and other members of the road crew would drink excessively and she had learnt from other members of the crew that alcohol was consumed in considerable quantities and there were occasions when he, and other members of the road crew, “had nights out”. She said that she did not observe her husband drink alcohol on many occasions because when he returned to Benalla on Friday evenings he would attend the local hotel and would spend time at a hotel on Saturdays and visit friends on Sundays where he also consumed alcohol.
19. Mrs Codd was referred to some statements and medical histories contained within the T-documents. She recalled that throughout the 1950’s and 1960’s he was consuming blood pressure medication which had been prescribed to him by Dr Alexander in Benalla. She thought that her husband did not give accurate histories nor did he give an accurate history to doctors of his alcohol consumption and said that she “didn’t think he told them everything”. She said a reference within the T-documents (p132) of him consuming six glasses of beer per week would be incorrect as also was the estimate of alcohol consumption found at page 138. She said that he always attended a hotel on pay days and it was evident from time to time that he had drunk excessively because his speech would be slurred and he would be unsteady whilst walking. She could also smell alcohol on his breath. Mrs Codd said that on occasions when she attempted to talk to her husband about the increase in his alcohol consumption throughout their marriage he would refuse to listen and on occasions he said that he did drink because “he wanted to forget things”.
20. Mrs Codd said that her husband was adversely affected by sunlight and would always wear sunglasses on sunny days particularly when he was driving a vehicle.
21. Mrs Codd was also taken to an application that she made for widow’s pension in October 1969 (p163) where it was recorded that Mr Codd had frequently complained of a “dizzy feeling” whilst at home and on those occasions he would have to sit or lie down. The statement also records that she had spoken to his former workmates who had observed that he would have to stop or rest during work because he had complained of “feeling dizzy”. Mrs Codd said that she could not recall those events.
22. With respect to the evidence of Mr O’Connor at the inquest, Mrs Codd said that she agreed with his observations of her husband “to a degree” but said that her husband had consumed alcohol heavily on the night before his death and would have been affected by a hangover on the morning of his death.
23. Mrs Codd said that she had also spoken to Dr Alexander who had told her that the hypertension suffered by her husband would have caused him to be light headed and that the jerking of his head (which had been apparent prior to enlistment) would have been aggravated “by his nerves”. She said that his anxiety would have also contributed to nystagmus which Mr Codd also suffered.
24. Whilst Mrs Codd could not remember the incidents referred to above concerning complaints of dizziness as observed by his workmates, she said that she continued to hold the belief that dizziness would have contributed to his death. She was unable to explain why she did not record in her original claim form that her husband consumed alcohol to excess.
25. In re-examination Mrs Codd said that although there were six children of the marriage at the time of her husband’s death – the youngest being 18 months of age – she had obtained paid employment because the amount allocated to her by her husband from his wage packet each week was insufficient to meet housekeeping costs. She said the balance of his salary was spent on alcohol. She said that her husband drank alcohol “to forget things” and because he was “ashamed”. She said he was reluctant to talk to others about his war time experiences and did not want other persons to “interfere”.
the hypotheses
26. The applicant relied on five hypotheses connecting the circumstances of the death of Mr Codd with his service, namely,
(i)anxiety – it was submitted that the service of the deceased caused him to develop an anxiety condition which contributed to impairment of concentration, lack of sleep, nightmares and restlessness all of which contributed to the collision.
(ii)alcohol consumption – as a consequence of his service it was submitted that the deceased consumed alcohol excessively which in turn contributed to an impairment of concentration contributing to the collision.
(iii)aggravation of nystagmus – it was submitted that the deceased suffered from nystagmus and jerky movements of his head which were aggravated by anxiety. It was submitted that the nystagmus and head jerking contributed to the fatal collision.
(iv)the combination of anxiety, alcohol and nystagmus – it was submitted as a result of service the applicant commenced to consume alcohol excessively by way of self medicating. The nystagmus and jerking of his head were aggravated by anxiety and the combined effects of alcohol consumption, aggravation of nystagmus and head jerking contributed to impaired concentration which contributed to the fatal collision.
(v)hypertension – it was submitted that hypertension was accepted as war-caused which caused the deceased to suffer from light headedness. These features together with impairment of concentration – which it was submitted also arose out of being light headed contributed to the fatal collision.
27. The above five hypotheses are discussed below as submitted by the applicant. The respondent’s response to each of the submissions upon hypothesis is also recorded.
the anxiety hypothesis
28. It was submitted that on the balance of probabilities there should be a finding that Mr Codd suffered from generalised anxiety disorder. The applicant relied on the reports of Dr Whitaker and Dr Holwell found within the T-documents and also upon a concession made by the respondent that the deceased’s service in New Guinea as a stretcher bearer points to him having “experienced a severe psychological stressor” within the meaning of the applicable Statement of Principle (“SOP”).
29. More specifically it was alleged that the material points to the veteran suffering from an anxiety disorder by reason of his service as a stretcher bearer, upon the observations of Mrs Codd of her husband being restless and “nervy”, suffering from frequent nightmares, being easily upset and irritated by noise. Additionally it was noted that there was evidence of members of the deceased’s family observing him to be “changed” upon his discharge from service.
30. It was submitted that an impairment of concentration at the time of the collision was evident because the deceased was cautious when driving and particularly when approaching intersections. Additionally it was submitted that the deceased was aware of the train timetable and therefore would have known that a train would have been approaching the Witt street intersection at or about the time of the collision. It was noted by Mr O’Connor that brake lights on the vehicle being driven by the deceased were not activated, the behaviour of the deceased at the time of the collision was not consistent with his normal character, the deceased apparently ignored or was not aware of the sound of the train whistle as it approached the intersection and the deceased continued to drive across the intersection despite the evidence of the train driver that the whistle of the train was being activated in short blasts when only 50 yards from the crossing. In conclusion it was submitted that acute anxiety can be responsible for “impairment of the senses”.
31. The applicant relied on SOP Instrument No. 1 of 2000 entitled Generalised Anxiety Disorder and particularly upon factor 5(ii). It was submitted that the hypothesis was consistent with the template found within the above Instrument having regard to the circumstances of his service, his subsequent distress and anxiety, the evidence of Dr Whitaker and Dr Holwell as contained within their reports and the elevated blood pressure upon discharge being consistent with tension. Additionally there was material – it was submitted – pointing to the clinical onset of anxiety within two years of experiencing the severe psychological stressor.
32. With respect to the impaired concentration being a link within this hypothesis, it was submitted that this proposition was reasonable because all of the surrounding circumstances pointed to impaired concentration which was not an unreasonable or impossible proposition. Additionally it was put that this part of the hypothesis was supported by medical opinion and put forward by a medical practitioner who was eminent. It therefore followed that this part of the hypothesis was reasonable (refer opinions of Dr Whitaker and Dr Gilligan and Professor Harper).
33. In concluding this part of the submissions upon the anxiety hypothesis it was submitted that the Tribunal could not be satisfied beyond reasonable doubt that there was no sufficient ground for making a determination that the anxiety condition contributed to death.
34. Mr Douglass submitted that there was no material pointing to the deceased being affected by anxiety on the morning of his death. Mr Douglass noted the evidence of Mr O’Connor who reported that Mr Codd was sober and “quite normal prior to leaving the yard. He made no complaint of sickness or injury”. Mr Douglass also referred to the written statement of Mrs Codd who recorded that “there was nothing remarkable that I can remember about his state that morning”.
35. It was submitted that there was no material pointing to any anxiety condition which, if it did exist, had any affect upon concentration. It was submitted that the report of Dr Whitaker put this proposition at no higher than speculation and the opinion of Professor Harper that anxiety might lead to an impairment of concentration was “an hypothesis in the abstract”. It was submitted that Professor Harper did not make any finding that the veteran suffered acute anxiety at the time of the collision nor that it had any bearing upon the accident. Indeed it was submitted that there was “ample contemporaneous lay evidence to suggest that it was more probable than not that the veteran was not affected by anxiety at the time of the accident”.
the alcohol hypothesis
36. It was submitted that the deceased commenced to drink alcohol as a consequence of his service. Additionally it was submitted that the deceased consumed alcohol to excess. It was therefore put that this was a contributor to death and a hypothesis exists. Ms Bornstein submitted that the surrounding circumstances pointed to a connection between service and alcohol consumption because the deceased did not drink alcohol prior to enlistment, he was engaged in service which produced an anxiety reaction and as a consequence he commenced to consume alcohol to self medicate. He was observed by members of his family to be a changed person upon return from service. A major part of his salary each week was expended upon alcohol and the pattern of drinking of Mr Codd subsequent to service was consistent with opinions expressed by Dr Holwill and Dr Whitaker of an association between service and alcohol consumption. On the night prior to the collision the deceased had consumed alcohol to excess, that alcohol was detected in his bloodstream upon post mortem and Mrs Codd said in evidence that her husband had a hangover prior to leaving home on the morning of the collision. Additionally there was evidence from Mrs Codd that her husband drank alcohol to excess on frequent occasions, the relationships with members of his family were affected, that he would not speak to his doctors about his alcohol habit and was reluctant to seek help from others. Additionally she had learnt from other members of the road crew that her husband drank alcohol frequently and in excess whilst working away from home during each week.
37. It therefore followed – upon these submissions – that the deceased’s concentration was impaired at the time of the collision, by reason of his alcohol consumption, by him being hung over at the time of the collision and the pattern of his driving immediately prior to the collision was inconsistent with his normal cautious approach to driving and approaching this and other intersections. It was noted that the brake lights of his vehicle were not activated, that the deceased had apparently ignored the sound of the approaching train whistle and he would have been familiar with the approximate time that the south bound train passed through that intersection, all of which contributed to an absence or lack of concentration, contributing to the fatal collision.
38. It was submitted that an applicable SOP is Instrument No. 76 of 1998 entitled Psychoactive Substance Abuse or Dependence and the Tribunal should be satisfied on the probabilities that the veteran suffered alcohol abuse and that the applicable template within Instrument No. 76 of 1998 has been satisfied. It was submitted that the material points to the deceased veteran having experienced a severe stressor during service which was consistent with a concession made by the respondent and there is material also pointing to the clinical onset of alcohol abuse within two years of experiencing the severe stressor. Additionally, or in the alternative, it was submitted that factor 5(c) of the SOP was satisfied because the deceased suffered a psychiatric disorder as a consequence of service and the earlier submissions with respect to the anxiety hypothesis were relied upon in support of this hypothesis.
39. Mr Douglass submitted that there was no material pointing to the deceased being affected by alcohol at the time of the collision. It was submitted that Mrs Codd and Mr O’Connor at the inquest denied that the deceased was influenced by alcohol on the morning of the collision and the investigating police officer also concluded that he could find no evidence of the deceased being affected by alcohol. It was acknowledged that there was some alcohol in the deceased bloodstream at the time of the collision but the medical opinion found within the documents lodged would indicate that this would have been of no significance. Additionally it was submitted that there was no material pointing to any affect upon the deceased by alcohol and it therefore followed that the collision did not occur by reason of any affect upon the deceased by alcohol.
the nystagmus hypothesis
40. It was submitted that on the probabilities it should be found that the late Mr Codd suffered from nystagmus (refer reports of Doctors Gilligan, Whitaker and Professor Harper) and the material points to a connection between the circumstances of service, the nystagmus and the fatal collision.
41. In support of this hypothesis it was submitted that there was material pointing to the deceased suffering from chronic nystagmus and head jerking from an early age. Thereafter the deceased developed an anxiety condition which was related to service and the nystagmus and head jerking was more pronounced and prominent when the deceased was upset or agitated.
42. Additionally Mrs Codd gave evidence that she had discussed her husband’s nystagmus and head jerking with Dr Alexander who had told her that anxiety could aggravate nystagmus. It therefore followed that the aggravation of nystagmus and head jerking contributed to impaired concentration which contributed to death for the reasons previously submitted namely, the absence of brake lights, the caution usually undertaken by the deceased when driving or when approaching an intersection, and the apparent failure to recognise or respond to the whistle of the train as it approached the intersection.
43. It was submitted that this hypothesis included a sub-hypothesis of anxiety which for reasons expressed previously could be found to exist and satisfy the SOP. It was submitted that there is no SOP with respect to nystagmus or the aggravation of it together with head jerking and accordingly the principles establishing a reasonable hypothesis within the High Court decisions of Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564 apply. Additionally it was submitted that the sub-hypothesis of impaired concentration is not the subject of any SOP and accordingly the Bushell and Byrnes principles apply.
44. It was submitted that a reasonable hypothesis exists connecting the aggravation of nystagmus and head jerking with service and that there is material pointing to it. That material comprises the pre-existence of chronic nystagmus, stressful service, subsequent anxiety disorder, evidence of the deceased being upset and irritable which in turn aggravated the nystagmus and the head jerking and the apparent agitation of the deceased on the night prior to the collision because of a blow fly buzzing throughout the bedroom at home. Additionally it was put that the hypothesis with respect to impaired concentration under this hypothesis is reasonable because the surrounding circumstances indicate that the deceased failed to stop at an intersection with which he was familiar which in turn arose out of his anxiety state or alcohol consumption from which applicable SOPs can be satisfied. It was submitted that the propositions put with respect to this hypothesis were not unreasonable or impossible and remain “reasonable” even though the propositions may be unproved or opposed to the weight of medical opinion. It therefore followed that the Tribunal could not be satisfied beyond reasonable doubt that there was no sufficient ground for determining that the condition of aggravation of nystagmus and head jerking contributed to death.
45. Mr Douglass acknowledged that there was no controversy concerning the deceased suffering from nystagmus however he said nothing pointed to any interference with his work as a truck driver by it. He said there was nothing which pointed to the nystagmus having any contribution to the circumstances of the fatal collision that there was much to suggest that the deceased “was normal” immediately prior to the collision. It therefore followed that the nystagmus did not contribute to the accident.
the combined hypotheses
46. It was submitted that upon the report of Dr Whitaker a reasonable hypothesis exists being the combined effects of alcohol consumption and nystagmus and head jerking whilst driving into the sun being likely to substantially impair concentration and attention thereby contributing to the deceased’s failure to stop immediately prior to the collision.
47. Ms Bornstein reiterated her earlier submissions with respect to anxiety, alcohol consumption and nystagmus and relied on the principles in McKenna v Repatriation Commission (1998) 52 ALD 72 with respect to sub-hypothesis. It was submitted that this hypothesis is reasonable, that it is based on raised facts and has been advanced by a medical practitioner (Dr Whitaker) who was previously employed as a psychiatrist with the Department of Veterans’ Affairs. Additionally it was submitted that the absence of other medical opinions supporting the hypothesis did not defeat the hypothesis now raised. Additionally it was noted that Dr Whitaker is prominent and eminent in the field of psychiatry and preference for one opinion over another is not permissible when deciding whether a reasonable hypothesis exists.
48. Mr Douglass in his written submissions recorded that the “combined hypotheses suffers from all the evidentiary defects of the individual hypothesis”.
the hypertension hypothesis
49. It was submitted that whilst the applicant relies on the preceding four hypotheses as her primary submissions it should be found on the probabilities that the deceased did suffer from hypertension, that it was accepted by the respondent as war-caused and that Dr Whitaker had found that Mr Codd did suffer from labile hypertension. It was submitted that there was material pointing to a connection between service and hypertension namely, the deceased being observed frequently to be light headed and the evidence of Dr Alexander who was of the opinion that being light headed had an association with hypertension. In turn it was submitted that the hypertension contributed to impairment of concentration as manifested by all of the circumstances as submitted earlier.
50. Additionally it was submitted that the provisions of s8(1)(f) of the Veterans Entitlements Act 1986 (“the Act”) had application in the present circumstance. This is because the condition of hypertension has been accepted as war-caused. It therefore followed that the death of the veteran should be taken to be war-caused.
51. Mr Douglass submitted that whilst accepting that the condition of labile hypertension was accepted as war-caused the medical evidence – which he said was uncontradicted – did not support the proposition that dizziness suffered by the veteran was associated with hypertension. It was submitted that any dizziness was more likely to have an association with the nystagmus.
conclusion and reasons for decision
52. One of the hypotheses advanced by the applicant in these proceedings was the service of the deceased exposed him to a number of stressful events which caused an anxiety reaction a consequence of which included impairment of concentration which in turn contributed to the collision which was responsible for his death.
53. The assertion of a hypothesis, a determination of whether it is reasonable and whether it has been disproved has been the subject of many decisions of the Federal and High Courts and by this Tribunal. For the purposes of this decision the following passage from Bynes at 569-571 is applicable:
The statement in Bushell that the material must point to some fact or facts which support the hypothesis means no more than that the material before the Commission must raise some fact or facts which give rise to the hypothesis. When that fact or those facts have been identified, the question for determination is whether the hypothesis is reasonable. In Bushell [7] , Mason CJ, Deane and McHugh JJ said:
"[A] hypothesis cannot be reasonable if it is `contrary to proved scientific facts or to the known phenomena of nature [8] '. Nor can it be reasonable if it is `obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous' [9] ."
In some cases, the hypothesis may assume the occurrence or existence of a "fact". That itself does not make the hypothesis unreasonable. So, in the present case, the appellant's hypothesis is not unreasonable simply because it assumes that the appellant sustained a severe injury when he dived into a swimming pool in Townsville, notwithstanding that the materials before the Commission did not reveal the extent of the injury which he then suffered.
Once a reasonable hypothesis is raised, the question for the Commission is then whether it is satisfied beyond reasonable doubt that there is no sufficient ground for making a determination that the injury was war-caused. The Commission will be so satisfied if it is satisfied beyond reasonable doubt that the factual foundation of the hypothesis has been disproved [10] , either by proof beyond reasonable doubt that a fact or fact relied upon to support the hypothesis is not true, or by proof beyond reasonable doubt of the truth of a further fact, inconsistent with the hypothesis [11] .
The passages in the joint judgment in Bushell that indicate that once the "raised facts" raise a reasonable hypothesis that is the end of the matter unless the raised facts are disproved [12] should not be taken to suggest that proof beyond reasonable doubt of a further, inconsistent fact will not be sufficient, under s 120(1), to preclude a finding by the Commission that the injury was war-caused. The remarks of the majority in Bushell were directed specifically to a situation where the raised facts giving rise to the hypothesis covered "the whole of the material" bearing on the hypothesis. They were not directed to a case where the veteran relies on part only of the material before the decision maker. Proof beyond reasonable doubt of a fact inconsistent with the reasonable hypothesis would, by implication, demonstrate that "the factual foundation upon which the hypothesis can operate does not exist" [13] .
The position may be summarized as follows: (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.
54. Subsequent to the delivery of the decision in Byrnes and Bushell, the Act was amended to incorporate provisions with respect to the Repatriation Medical Authority (“RMA”) and the publication and subsequent application of SOPs. The Act as amended provides that factors consistent with a SOP must exist as a minimum before it can be said that a reasonable hypothesis has been raised connecting service with illness, injury or death. A SOP however has no role with respect to proving or disproving a veteran’s case but is limited to prescribing a “medical-scientific standard with which a hypothesis must be consistent – so that the SOP can “uphold” the hypothesis . . .” (refer Heerey J at first instance in Deledio v Repatriation Commission (1997) 47 ALD 261 (“Deledio”) at 275). Therefore if an illness, injury or disease which forms part of the hypothesis is the subject of a SOP, one or more of the factors within that SOP must exist as a minimum in order to establish the reasonableness of the hypothesis. If the illness, injury or disease forming part of the hypothesis is not the subject of a SOP (contrary to Repatriation Commission v Deledio (1998) 49 ALD 193 at 206), the hypothesis will not be found to be a hypothesis which is not reasonable; its reasonableness will be determined by the provisions of s120(1) and (3) of the Act rather than s120A of the Act (refer Repatriation Commission v Hancock [2003] FCA 711 at paragraph 10; Bull v Repatriation Commission [2001] FCA 1832 and s120A(4) of the Act).
55. In the present application, “anxiety” is the subject of SOP Instrument No. 1 of 2000 entitled “Generalised Anxiety Disorder”. The applicant relies on this SOP and submits that factor 5(a)(ii) exists as a minimum namely:
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder or death from anxiety disorder with the circumstances of a person’s relevant service are:
(a) for generalised anxiety disorder or anxiety disorder not otherwise specified, only
. . .
(ii) experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; . . .
56. A “a severe psychosocial stressor” is defined at paragraph 8 of the SOP in the following terms:
“severe psychosocial stressor” means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;
57. The word “experiencing” does not form part of the definition however discussion of the meaning to be given to the word “experienced” is found at paragraphs 77 and 78 of Woodward v Repatriation Commission [2003] FCAFC 160 (“Woodward”) . In Woodward and also in Stoddart v Repatriation Commission (2003) 197 ALR 283 (subsequently upheld an appeal in Repatriation Commission v Stoddart [2003] FCAFC 300)their Honours respectively discussed the word “experiencing” in the context of the PTSD SOP. It was decided that “experiencing” contains a subjective element. There is no reason to depart from this rationale when examining that word as it appears in the SOP being considered in this review.
58. During the assessment period, Instrument No. 1 of 2000 was the only SOP “in force” (refer s120A(3)).
59. The issue of diagnosis is not to be determined pursuant to the SOP (refer Benjamin v Repatriation Commission [2001] FCA 1879.
60. Another element of this hypothesis is “impairment of concentration”. I am not aware whether that amounts to an injury, illness or disease within the Act but if it does I can find no SOP applicable. Accordingly that part of the hypothesis is to be determined pursuant to s120(1) and (3) of the Act (refer Hancock).
61. If a hypothesis is to be upheld by a SOP connecting death with the circumstances of service, it must comprise a number of “links” (refer Goldberg J in Repatriation Commission v McKenna (1998) 52 ALD 72or “essential elements” (refer Connors v Repatriation Commission (2000) 15 ALD 61) or “an essential link or element” (refer Dunlop v Repatriation Commission [2003] FCAFC 2001). In the Full Federal Court decision of McKennav Repatriation Commission [1999] FCA 323 a “link” was referred to as a “sub-hypothesis forming part of each hypothesis” (refer paragraph 23).
62. It therefore follows that all of the “links” or “essential elements” or “sub-hypothesis” in this hypothesis must be raised by the material. It is only after that has been achieved that consideration will be given to whether the hypothesis is reasonable.
63. The remaining preliminary issue is a finding on the balance of probabilities of the diagnosis.
64. Dr Holwill in his report of 22 April 2002 (T-documents p107) decided that upon the history given to him by Mrs Codd, the symptoms of the deceased were suggestive of PTSD or generalised anxiety disorder. Dr Whitaker in his report of 21 August 1990 made a diagnosis, again on the history given to him by Mrs Codd, of “aggravated anxiety reaction” (T-documents p79). Doctors Holwill and Whitaker are both practising psychiatrists. In a Statement of Facts and Contentions lodged prior to the commencement of the hearing the respondent (paragraph 37) “accepts that there is material pointing to the applicant having experienced “a severe psychosocial stressor” . . . whilst acting as a stretcher bearer in New Guinea”.
65. In my view the concession made by the respondent is properly and fairly made. I am satisfied also that Doctors Whitaker and Holwill have arrived at a diagnosis consistent with the information provided to them from Mrs Codd and from a number of documents that have been lodged in these proceedings. This finding is also permissible having regard to the evidence of Mrs Codd during the hearing of this review. I am satisfied and find as a fact that upon the balance of probabilities, the applicant did suffer an anxiety condition, which was present at the date of his death may be properly described as “generalised anxiety disorder”, thereby attracting consideration of SOP Instrument No. 1 of 2000.
66. In the Full Federal Court decision of Repatriation Commission v Deledio (1998) 49 ALD 193 at 206, four stages of analysis were decided as applicable to decide whether a hypothesis exists, whether it is reasonable and whether the respondent has a liability, namely:
1. The tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the “template” to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.
4. The tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
67. With respect to the first stage as recorded above the hypothesis is of the deceased being engaged in operational service in New Guinea as a stretcher bearer which was stressful and which precipitated an anxiety reaction a consequence of which caused him to suffer an impairment of concentration at or about the time of the collision with the train which resulted in his death. I have found as a fact that the deceased did suffer from an anxiety reaction. There is material contained within the medical reports and from the service records generally located throughout the T-documents of the deceased being engaged in service which was stressful. Dr Holwill concludes in his report (page 108) that it would be reasonable to assume that there was an impairment in the deceased’s concentration (“at least by the presence of alcohol”) and Dr Whitaker was of the view that a combination of factors (including “anxiety state”) contributed to a substantial impairment in concentration (page 81). Professor Harper has given some support to an impairment of concentration by the acute anxiety (refer page 2 of report of 4 June 2003). There is material which obviously exists identifying the deceased having been engaged in service, having been involved in a collision with a train and having died as a consequence. Accordingly I am satisfied that there is material pointing to the hypothesis connecting service with death and stage 1 of Repatriation Commission v Deledio is satisfied.
68. Stage 2 is obviously satisfied because there is a SOP “in force” namely Instrument No. 1 of 2000 entitled “Generalised Anxiety Disorder”.
69. It is at Stage 3 of Repatriation Commission v Deledio that the reasonableness of the hypothesis is determined. The hypothesis will be reasonable if it is consistent with or fits the template of the SOP. Findings of fact are not required at this stage but the hypothesis as raised must contain at least one of the factors within the SOP which exists as a minimum and which is related to the service of the deceased.
70. It is known that the deceased did not consume alcohol prior to enlistment but upon his discharge he was observed by members of his family and later by his wife as a person who drank alcohol to excess, who had nightmares frequently and which persisted until the time of his death, who would refuse or be reluctant to speak of his operational service and who admitted to consuming alcohol as “self medication”. The clinical onset therefore of the anxiety disorder would have occurred – at the latest – on the day of discharge from service. By reason of his service there is material which points to him having experienced a “severe psychosocial stressor” as defined during service. It therefore follows that the deceased experienced a “severe psychosocial stressor” within two years immediately before the clinical onset of the anxiety disorder. Dr Whitaker has given a graphic and robust opinion upon the relationship between service and the anxiety state. Dr Holwill reported that the deceased was “often exposed to gruesome events”. The remaining part of the definition includes events which are described as examples but, nonetheless, having to carry and evacuate wounded and dead comrades whilst in all probability under risk himself would constitute a “severe psychosocial stressor” as defined. I am therefore satisfied that the hypothesis as raised above satisfies one of the factors from Instrument No. 1 of 2000, factor 5(a)(ii) which exists as a minimum and which is related to the deceased’s service.
71. Part of this hypothesis concerns an impairment of concentration. There is material in the medical reports supporting a connection between anxiety and impaired concentration. Dr Gilligan does not support this connection but this does not deny this part of the hypothesis as being reasonable (refer Bushell). When all the links or essential elements comprising the hypothesis are considered, the facts as raised point to this hypothesis being reasonable. It could not be said that the hypothesis is “fanciful, impossible, incredible or not tenable or too remote or too tenuous (refer East v Repatriation Commission (1987) 6 AAR 492). It is, in my view, a hypothesis which is reasonable because it advances something more than mere possibility.
72. The foregoing paragraphs are concerned with raised facts. The remaining part of the analysis under Repatriation Commission v Deledio (stage 4) concerns facts which must be found. Consideration must also be given to whether a finding can be made beyond reasonable doubt that death was not war-caused. If such a finding cannot be made the claim must succeed.
73. As is always necessarily the case involving widows’ applications, the deceased veteran is not able to give evidence or explain the actual events in service or his reactions. Necessarily any findings must be made on other available information. Widows should not suffer prejudice by the absence of evidence from their husbands and the Act is to be applied beneficially.
74. It is known that the deceased did suffer from a congenital nystagmus and who was initially classified as Class 2B in January 1942. In March 1942 he was classified as “permanently unfit for service”. The deceased apparently was persistent in his attempts to join the armed forces and ultimately satisfied a medical board in October 1942 that he should be classified as Class A1. As a result of that classification he was engaged in service in New Guinea as a stretcher bearer.
75. There have been many applications in this Tribunal involving New Guinea veterans where the horror of that campaign has been graphically portrayed. I need little persuasion to be satisfied as a fact that the applicant would have been exposed to the “gruesome events” (refer report of Dr Holwill). By the very nature of service as a stretcher bearer, the deceased would also have been exposed to risk when assisting the evacuation of dead or wounded comrades. He would have done so in a theatre of war. Put another way, the need to be engaged and serve as a stretcher bearer dictates that there were persons killed or wounded who would need to be evacuated from areas of hostility. I am satisfied therefore that events of that type would have evoked substantial distress and I am satisfied as a fact that the deceased did suffer from generalised anxiety disorder. That finding is made also upon the contents of the report of Dr Whitaker to which I would attach considerable weight, not only by reason of the descriptions of New Guinea service as he has reported, but having regard also to his experience with other World War II veterans in his former capacity as a psychiatrist with the Department of Veterans’ Affairs.
76. I am also satisfied as to this finding by reason of the evidence of Mrs Codd and her reporting of the observations of other members of the family of the deceased that he was a changed person upon his discharge from service, that he was reluctant to speak about the events in service and obtained “comfort” by alcohol. It would appear also that the late Mr Codd suffered nightmares. All of this points to a person with a generalised anxiety disorder. The clinical onset necessarily – having regard to the observations of him upon his discharge – occurred within two years of the discharge of his service being the latest date of him having experienced a “severe psychosocial stressor”.
77. The remaining part of the hypothesis is the connection between the anxiety state and an impairment of concentration at or about the time of the collision with the train. What was in the mind of the deceased immediately prior to the collision will never be known but findings must be made by all of the surrounding circumstances. It is known that the deceased was a cautious driver of motor vehicles and approached intersections and railway crossings with caution. It is known that he had frequently crossed the Witt Street railway crossing and would have been aware that a train would have been at or about that intersection at that time of the morning as he was approaching it on the day of the collision. He was observed to apply the blinkers to his motor vehicle as he turned a corner to approach the crossing but was not observed to activate the brake lights. The train driver said in evidence to the Coroner that he had been blowing the train whistle from a considerable distance prior to the crossing and from a distance of 50 yards prior to the crossing, he was blowing the train whistle in short bursts because it appeared that a collision would occur. It was believed that the sun would be in the eyes of the deceased as he was driving his vehicle but the train driver was able to observe the deceased whilst driving the tanker and observed (refer his evidence to the Coroner) that he continued to look straight ahead. At no time did the vehicle being driven by the deceased come to a halt but continued to cross the railway lines at a slow speed. His blood alcohol reading was later found to be the equivalent of having consumed one 7oz glass of Victorian beer. I would not be satisfied that that equivalent blood alcohol content would be responsible for an impairment of concentration but I would be satisfied and find as a fact that all of the other events point to impairment of concentration. The impairment of concentration would appear to exist from at least the point in time immediately after the deceased activated the blinkers on his motor vehicle until the time of the collision. It may be reasonably assumed in my view that activating the blinkers to his motor vehicle was consistent with concentrating whilst driving. However to approach and travel onto a railway intersection without stopping, without apparently hearing the train whistle, without turning his head to the left or the right to observe whether there were any oncoming trains and driving in these circumstances on a crossing with which he was familiar, with which he was normally cautious, at which he was normally aware of the train timetable would all, in combination, satisfy me, as a fact, that there was at that time an impairment of concentration. Additionally there is support for the connection between the anxiety state and the impairment of concentration from the reports of Doctors Whitaker, Holwill and Professor Harper.
78. The remaining parts of the hypothesis comprise the collision and the death of Mr Codd, both events being beyond dispute.
79. I am therefore satisfied that all of the links comprising this hypothesis have been connected and exist as a fact. It cannot in the circumstances be found that death was not war-caused. The other hypotheses advanced by the applicant need not be considered. The claim must succeed and the decision under review must be set aside.
I certify that the 79 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J Handley, Senior Member
Signed: Grace Carney
Personal AssistantDate of Hearing 22 August 2003
Date of Decision 20 August 2004
Counsel for the Applicant Ms J Bornstein
Solicitor for the Applicant Williams Winter
Departmental Advocate Mr R Douglass
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