Collier and Repatriation Commission
[2004] AATA 1100
•22 October 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1100
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/1548
VETERANS' APPEALS DIVISION ) Re RODERICK GRAHAM COLLIER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Dr P D Lynch, MemberDate22 October 2004
PlaceSydney
Decision The decision under review is affirmed. (Sgd) M D Allen
..............................................
Presiding Member
CATCHWORDS
VETERANS’ ENTITLEMENTS - claim for ischaemic heart disease caused by hypertension – necessity of complying with Statement of Principles for both ischaemic heart disease and hypertension – if hypertension caused by alcohol was alcohol intake caused or contributed to by eligible service
LEGISLATION
Veterans' Entitlements Act 1986 s70, ss120(4)and (6), s120B
AUTHORITIES
Repatriation Commission v Gorton (2001) 110 FCR 321
McKenna v Repatriation Commission (1999) 86 FCR 144
Repatriation Commission v Smith (1987)15 FCR 327
March –v- E & M H Stramare Pty Ltd & Anor (1991) 171 CLR 506
REASONS FOR DECISION
22 October 2004 Senior Member D Allen Dr P D Lynch, Member 1. By application made the 27th day of October 2003, the Applicant sought review of a decision made by the Respondent on 14 November 2002 rejecting a claim to have the conditions of hypertension and ischaemic heart disease attributed to Defence Service.
2. The Applicant served in the Royal Australian Navy (“RAN”) from 5 January 1965 to 28 January 1994 although his period of eligible Defence Service pursuant to the Veterans’ Entitlements Act (“VEA”) 1986 dates only from 7 December 1972.
3. As the Applicant did not have operational service, the standard of proof in this matter is that prescribed by subsection 120(4) VEA namely that of to the Tribunal’s “reasonable satisfaction”. As pointed out in Repatriation Commission v Smith (1987) 15 FCR 327, the phrase “reasonable satisfaction” equates to the civil standard of proof, that is to say proof on the balance of probabilities.
4. Subsection 120(6) provides that neither party to this review bears any onus of proof.
5. Section 120B VEA provides that the Tribunal cannot be reasonably satisfied that a disease is attributable to Defence Service unless the material before the Tribunal raising a connection between the said disease or diseases conforms to a so called Statement of Principles (“SoP”).
6. Where, as in this matter, the acceptance of a disease as being related to service depends upon the recognition of some intermediate condition as being service related then, if an SoP is in force relating to the intermediate condition, the provisions of that SoP must also be met by the material before the Tribunal see McKenna v Repatriation Commission (1999) 86 FCR 144.
7. Therefore in this matter, as the Applicant claims that his ischaemic heart disease has been caused by hypertension then, the material before the Tribunal raising the connection with service must conform not only to the SoP regarding ischaemic heart disease but also to the SoP relating to hypertension.
8. The current SoP relating to hypertension in cases where the Applicant did not have operational service is Instrument No.36 of 2003 as amended by Instrument No.4 of 2004. The applicable SoPs for ischaemic heart disease are Instrument No.54 of 2003 as amended by Instrument No.10 of 2004.
9. Repatriation Commission v Gorton (2001) 110 FCR 321 is authority for the proposition that if the Applicant cannot succeed under the SoP currently in force, recourse must be had to the SoP in force at the time the Respondent made its original decision in this matter. In our opinion, the current SoPs regarding hypertension and ichaemic heart disease are more favourable to the Applicant than the SoPs in force at the time the Respondent made its original decision, consequently recourse need not be had to those earlier and now superseded SoPs.
10. In the Statement of Facts and Contentions lodged on his behalf, the Applicant claimed his ischaemic heart disease had been caused by cigarette smoking. During the course of the hearing the Applicant quite properly, given the evidence adduced abandoned this contention. He however maintained the submission that his alcohol intake had led to hypertension and hence to ischaemic heart disease.
11. Factor 5(a) of Instrument No.54 of 2003 states a factor connecting ischaemic heart disease with service is “the presence of hypertension before clinical onset of ischaemic heart disease” whereas factor 5(b) of Instrument No.36 of 2003 as amended by Instrument No.4 of 2004 reads:
“… consuming an average of at least 300 grams per week of alcohol for a continuous period of at least 6 months immediately before the clinical onset of hypertension, which cannot be decreased to less than an average of 300 grams per week of alcohol…”
12. In passing we must state that the wording of factor 5(b) is confusing. Just what is meant by the words “which cannot be decreased to less than an average of 300 gram per week…” As presently drafted, that factor just does not make sense. Does it speak of a period before or after clinical onset?
13. So far as the date of clinical onset of hypertension is concerned we accept the opinion of Professor O’Rourke that clinical onset was in late 2000 when coronary disease was diagnosed and treatment instituted. There are prior readings of elevated blood pressure but these are isolated readings and do not demonstrate a consistently elevated blood pressure.
14. Having abandoned smoking as a cause of his ischaemic heart disease the Applicant’s case was that his alcohol consumption led to hypertension which in turn led to ischaemic heart disease. The question therefore for the Tribunal is whether the Applicant’s alcohol intake was caused or contributed to by his naval service.
15. The report of Professor Mattick makes it clear that in his opinion the Applicant does not suffer from the diseases of Alcohol Abuse or Alcohol Dependence.
16. In his evidence to the Tribunal the Applicant stated that he had first drunk alcohol whilst a junior lifesaver and before joining the navy. At age 16 years 11 months he joined the Navy going first to recruit training at HMAS Lewin in Western Australia and then to the Naval Apprentice School HMAS Nirimba in Sydney’s Northwest. When on leave from HMAS Lewin he would have a few beers on a Saturday night. At HMAS Nirimba he was not allowed to drink alcohol until age 18.
17. Professor Mattick in his report records a history that the Applicant drank beer whilst at HMAS Nirimba which was smuggled in. He records the Applicant as stating “We used to get on it a bit.”
18. Professor Mattick also took a history of the Applicant drinking at his uncle’s house whilst still under the legal drinking age. There is also history that at this time he was consuming eight to ten glasses of beer on Saturday nights and that his uncle “showed him how to handle alcohol a little bit”.
19. When he was first posted to HMAS Melbourne as a junior sailor the Applicant was allowed 2 x 26oz cans of beer a night when flying operations were not taking place.
20. In 1972 the Applicant was promoted to the rank of Chief Petty Officer and in the CPO’s, Mess access to alcohol was unlimited. At this time he was drinking 3 to 4 cans of beer a day. As the Applicant put it in evidence, “we all just enjoyed a few beers” and it helped relax from the stress.
21. When the Applicant’s ship was in a harbour he drank more, namely 3 to 4 schooners of beer at lunch time and he would have “a few beers” on the way home.
22. A more comprehensive alcohol history is contained in the report of Professor Mattick, a history which has not been challenged in these proceedings and which we adopt. This history reveals a regular pattern of alcohol consumption, starting even before entrance into the Navy and as Professor Mattick records, “As he rose through the ranks his consumption of alcohol increased”.
23. Professor Mattick concludes his report by stating:
“…At times through his life Mr Collier certainly has consumed large amounts of alcohol… However, at times through his life he has consumed at least 300 grams of alcohol per week. However, once again, I do not believe that there is any clear cause or connection between his alcohol consumption and his eligible service. There does not even appear to be a particularly clear temporal connection between alcohol consumption and any eligible service. He drank heavily prior to any particular eligible service with the Royal Australian Navy, consuming alcohol heavily with his uncle and drinking whenever he could prior to eligible service.
His eligible service commenced in 1972, prior to which time he was drinking quite regularly and heavily, and there is no reason to believe that his eligible service had any impact on his drinking after that time.”
24. Cross-examined, the Applicant said that he drinks because he enjoys it and that it helps him relax. He said he has never been in a situation where he has not been able to control his drinking.
25. Although the Applicant stated that working in the engine room of ships was stressful at times, we are not satisfied that there was any incident on service which gave rise to any psychiatric illness which in turn caused the Applicant to self medicate by drinking alcohol. So far as Dr Koller’s report is concerned, it is worthless as it consists of no more than a series of assertions with no history or reasoning.
26. Whereas we accept that work in a ships engine room was hot, arduous and at times incidents arose which were stressful, there is no evidence but that the Applicant drank because he enjoyed it and it helped him relax. His drinking of alcohol was a personal choice and he had commenced to drink alcohol even before joining the Navy. As his career progressed he had a greater access to alcohol and availed himself of this opportunity. He was, in Professor Mattick’s opinion, already drinking regularly and heavily at the time his eligible service commenced, and there is nothing in the evidence before us to enable us to be reasonably satisfied that his alcohol intake was caused by the incidents of his eligible service as opposed to the Navy being the setting in which he continued to take advantage of the fact that alcohol was available to him.
27. The Applicant submitted that “but for” his eligible service, he would not have drunk alcohol to the extent he did and thus would not have become hypertensive. We reject this submission. The “but for” test is not a correct test for causation; see March –v- E & M H Stramare Pty Ltd & Anor (1991) 171 CLR 506. We find as a fact that the Applicant’s habit of drinking alcohol was well advanced before the commencement of eligible service. As stated above, all that occurred during eligible service was that he had the opportunity to drink more alcohol. There is nothing in his eligible service that “caused” him to either drink alcohol or increase the amount he consumed.
28. As we are satisfied that the Applicant’s alcohol consumption was not caused or contributed to by his eligible service the decision under review will be affirmed.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of:
Senior Member M D Allen
Dr P D Lynch, Member
Signed: (E.Pope)
.....................................................................................Associate
Dates of Hearing 20 July 2004; 8 October 2004
Date of Decision 22 October 2004
Solicitor for the Applicant Mr Brian Winship, Fairbairns Lawyers
Advocate for the Respondent Ms Shontelle Kenny, Department of Veterans’ Affairs
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