CTFL and Repatriation Commission (Veterans' entitlements) - [2020] AATA 238

CTFL and Repatriation Commission (Veterans' entitlements) [2020] AATA 238 (19 February 2020)
Division:VETERANS’ APPEALS DIVISION
File Number(s): 2017/3073
Re:CTFL
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:A G Melick AO SC, Deputy President
Date:19 February 2020
Place:Hobart

The Tribunal affirms the decision under review.
..........................[sgd].........................................
A G Melick AO SC, Deputy President
VETERANS’ AFFAIRS – claim for Defence-caused conditions – alcohol use disorder – whether the condition was Defence caused – standard of proof s120 of the Veterans’ Entitlements Act 1986 – what was required as a part of the Applicant’s duties – conditions related to personal life and not Defence force - decision under review affirmed
Legislation
Veterans’ Entitlements Act 1986 (Cth)
Cases
Roncevich v Repatriation Commission [2005] HCA 40
Roncevich v Repatriation Commission [2006] AATA 660
Holthouse v Repatriation Commission [1982] FCA 562
Secondary Materials
Repatriation Medical Authority’s Statement of Principles
REASONS FOR DECISION
A G Melick AO SC, Deputy President
19 February 2020

On 23 February 2015, the Applicant made a claim to the Repatriation Commission for alcohol use disorder (the disorder) in remission. The claim was refused on 30 April 2015 and the refusal was upheld by the Veterans’ Review Board on 6 April 2017.
On 22 May 2017 the Applicant applied for review by this Tribunal and for various reasons relating to the Applicant’s attempts to prosecute his case. The review was not heard until 27 September 2018.
BACKGROUND
The Applicant claimed (inter-alia) that the disorder arose from a perceived lack of workplace support and social isolation because of his homosexuality, which caused him to drink excessively partly in an attempt to gain acceptance. There was no dispute that the Applicant had an alcohol abuse disorder in remission and the question to be determined was whether or not that disorder was caused by his military service.
FACTS
At the hearing, the Applicant tendered and adopted an undated written statement filed on 19 March 2018. The following evidence was obtained from that statement and his cross examination.
The Applicant joined the Army as a national serviceman in 1972 and trained as a cook. He noted that this is where he became aware of the bullying in the Armed Forces and discovered that there was a perceived lack of social support.
It is relevant that the Applicant is homosexual, although after several incidents and comments he decided to keep his lifestyle secret “because of the innuendo that was dished out about ‘jack men’ and ‘alternate lifestyles’”.[1]
[1] Applicant’s personal statement (undated), submitted 19 March 2018, p1.
As his posting was in a remote location, he was forced into a confined community and stated he had to be very careful during social activities because of his sexuality, as it was repeatedly stated that his type would be “dealt with (in the Army way)”.[2]
[2] Ibid.
After qualifying as a cook he was posted to a Military barracks in Victoria as a pool cook. He stated that he “became a loner to avoid all the bullying that would inevitably happen” to him.[3] He was unable to maintain friendships as a result of becoming socially isolated.
[3] Ibid, 3.
In about 1974 the Applicant transferred to a Military barracks in Tasmania where, although the barracks was more relaxed than his previous posting, he continued to protect his way of life by keeping to himself.
By this time the Applicant had begun abusing alcohol. One night he was admitted to the Repatriation Hospital with alcohol poisoning after the President of the Mess Committee found him vomiting blood in his quarters. The Applicant was discharged from the hospital and had to make his own way back to the barracks (although I note from my own knowledge that the hospital is actually next door to the barracks) and was not offered any follow-up treatment.
The Applicant’s bed was in the same state as it was when he was admitted to hospital, so he had to clean it up himself and continue with work the next day. He still continued to drink and kept his lifestyle to himself as he was mainly drinking off base.
The Applicant maintained that he was socially isolated throughout his career and unable to maintain friendships of any kind. He had concerns about disharmony with work colleagues, perceived lack of social support and perceived bullying in the workplace.
When cross-examined, the Applicant conceded that he did not experience any traumatic events in the military and that he enjoyed being a cook.
The Applicant explained that he realised he was a homosexual about four months into his corps training, but decided to “shut up and keep serving”. He was aware that homosexuality was forbidden in the Defence Force and also became aware that engaging in homosexual acts was illegal in Australia. He was also aware that there were negative social attitudes towards homosexuality.
The Applicant reported that he commenced drinking heavily in 1973 when he started drinking with soldiers that had returned from Vietnam. He admitted that he told Dr Hyde that there was a heavy drinking culture in the Military in 1973 and that he abused alcohol on a daily basis. He felt additional pressure to conform because of his sexual orientation and fitting in included drinking excessively.
The Applicant maintained that at the time he enjoyed drinking and didn't think he had a problem while serving in the Army. He was able to stop in time to go to bed to enable him to work the next day. The Applicant was a good cook and got on well with older senior officers who seemed to tolerate occasional instances of obvious over-consumption of alcohol.
The Applicant left the Army and worked in a hospital for 24-and-a-half years. His alcohol consumption started to affect his work in the last couple of years at the hospital. He stated that he gave up drinking after being diagnosed with cirrhosis of the liver which, as a result, he was given less than six months to live in approximately 2006.
I found the Applicant to be an honest and frank witness and am satisfied as to the correctness of the facts set out above.
MEDICAL EVIDENCE
Dr George Hyde, consultant psychiatrist, examined the Applicant on an unspecified date and provided a brief report dated 23 March 2018.
The history obtained was consistent with the evidence set out above and Dr Hyde opined that the Applicant’s alcohol dependence developed as a result of the circumstances surrounding his Military service.
Dr Hyde noted that the Applicant did not currently have any symptoms consistent with an adjustment disorder. He also stated that it was difficult to make a diagnosis of such a disorder in retrospect and even more difficult to make a diagnosis in the presence of active substance dependence. Accordingly, he did not feel confident to provide an opinion on the presence of an adjustment disorder during the period 1973 to 1981 or subsequently thereafter. He noted that the Applicant reported that since ceasing alcohol consumption in 2006 his mood and anxiety levels had improved.
Dr Peter Miller, consultant psychiatrist, examined the Applicant on behalf of the Respondent on 24 October 2017 and provided a report dated 7 November 2017.
The history given to Dr Miller was consistent with that outlined above and the Applicant attributed the use of alcohol to a wish to avoid revealing his homosexuality to colleagues and superiors. He believed that he drank in order to avoid contact with women.
He noted that the Applicant ceased his drinking 11 years before the consultation after medical complications and ceased nicotine use nine years before the consultation. The Applicant had not worked since retiring in 2002.
He noted the Applicant lived alone in a flat with a limited range of interests including gardening, watching TV, reading and walking. He noted the Applicant had regular contact with three siblings, although expanded in cross examination that the Applicant suggested this contact was about four to five times a year.
Dr Miller noted the Applicant was taking no psychotropic medication. Dr Miller also noted that the Applicant’s parents were both alcoholics and one brother was a heavy alcohol user.
Upon examination of the Applicant’s mental state, Dr Miller noted that the Applicant is a 65-year-old man who engaged comfortably in the assessment. His mood was bright, he was not anxious and he was able to give a fluent account of his life history and difficulties. The Applicant did not report any mental symptoms and told the doctor that he was content with his life as it was. The doctor was not able to ascertain any memory or other cognitive impairments from the Applicant's long period of alcohol abuse.
He assessed the Applicant as having a history of alcohol use disorder and having been in remission for 11 years.
Dr Miller opined as follows:
(a)The Applicant suffers from an alcohol use disorder in remission as per DSM – 5.
(b)Alcohol use disorder in remission is a recognised psychiatric diagnosis and remains as a diagnosis even after many years of remission, because liability to fuller lapse is life-long.
(c)There are commonly multiple courses for alcohol or other drug use disorders, and in the Applicant's case both parents and one brother described by him as alcoholics, indicating a powerful genetic contribution which is well described in the literature. Cultural factors may also play a significant part in alcohol consumption in certain occupations and the Military is or was no exception, as is working as a chef. So, the Applicant, as a relatively young person with a strong genetic loading, found himself working in an environment where alcohol use was rife.
(d)The third reason attributed by the Applicant was his wish to avoid revealing his homosexuality. It is difficult to know whether this would have played a part but in my opinion, this factor did not play a major a substantial part, given the very large role played by the first two factors. No doubt sustained attempts to conceal his sexual orientation aroused anxiety, which has become the Applicant's key source of attribution for alcohol use.
(e)In my opinion the strong family history was a major or substantial contributor to the Applicant’s alcohol use disorder, with the other two factors playing a minor part.
(f)The clinical onset of the active alcohol use disorder would have been in 1972, the first year he was in the Military.
(g)His disorder was at such a level of severity that the Army, I would have thought, should have known or made some careful enquiries through the medical staff about the extent of the Applicant's alcohol use. He said that he and a few colleagues would spend all their days off-duty drinking on a ‘pub crawl’.
(h)It is likely that the Applicant's depressive disorder had contribution from alcohol use and his attempts to conceal his homosexuality, but this seems not to have come to the attention of the Military throughout his time he was serving.
LAW
The issue to be determined upon the balance of probabilities is whether or not the Applicant’s alcohol abuse disorder in remission was caused by his Defence service.
I note that there was no dispute that during the Applicant's time in the Military homosexuality was subject to criminal sanction in all States.
The relevant sections of Veteran's Entitlements Act 1986 (Cth) (the VEA) are as follows:
S 70 - Eligibility for pension under this Part
(1) Where:
(a) the death of a member of the Forces or member of a Peacekeeping Force was Defence-caused; or
(b) a member of the Forces or member of a Peacekeeping Force is incapacitated from a Defence-caused injury or a Defence-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(d) in the case of the incapacity of the member--pension by way of compensation to the member;
in accordance with this Act.
….
(5) For the purposes of this Act, ……..member an injury suffered by such a member shall be taken to be a Defence-caused injury or a disease contracted by such a member shall be taken to be a Defence-caused disease if:
(a) the death, injury or disease, as the case may be, arose out of, or was attributable to, any Defence service….of the member.
S 120B - Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles
Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles
(1) This section applies to any of the following claims made on or after 1 June 1994:
(a) a claim under Part II that relates to the eligible war service (other than operational service) rendered by a veteran;
(b) a claim under Part IV that relates to the Defence service (other than hazardous service and British nuclear test Defence service) rendered by a member of the Forces.
Note 1: Subsection 120(4) is relevant to these claims.
Note 2: For hazardous service , member of the Forces and British nuclear test Defence service see subsection 5Q(1A).
(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a) has determined a Statement of Principles under subsection 196B(3) in respect of that kind of injury, disease or death; or
(b) has declared that it does not propose to make such a Statement of Principles.
(3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or Defence-caused only if:
(a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i) a Statement of Principles determined under subsection 196B(3) or (12); or
(ii) a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
STATEMENT OF PRINCIPLES
In his Statement of Facts, Issues and Contentions, the Applicant submitted that the relevant Statement of Principles (SoP) is “Substance Abuse Alcohol, using the Stressor Cat.2 from the Adjustment Disorder” and “perceived lack of social support within the work environment”.
The relevant SoP would appear to be 49 of 2017 for Alcohol Use Disorder and Factor 9(6), which refers to:
“Experiencing a category 2 stress or within six months before the clinical onset of alcohol use disorder”.
The dictionary in schedule one provides that:
Category 2 stressor means one of the following negative life events, the effects of which are chronic in nature and cause a person to feel ongoing distress concern and worry:
(c) having concerns in the work or school environment including ongoing disharmony with fellow work or school colleagues, perceived lack of social support in the work or school environment, perceived lack of control over task performed and useful workloads, or experiencing bullying in the workplace or school environment.
I accept the Applicant's evidence to the effect that he perceived that he had a lack of social support in the work environment and, accordingly, he falls within the above-mentioned SoP. Such a finding is a necessary condition for eligibility and once having so found I must now consider whether the above-mentioned factor is Defence caused.
The SoPs were discussed by the High Court in Roncevich v Repatriation Commission [2005] HCA 40 where McHugh,Gummow,Callinan and Heydon JJ held:
Another argument of the appellant should however be accepted. It was, that in asking itself whether the appellant's intoxication was caused by, or arose out of a task that the appellant had to do as a soldier, it asked itself the wrong question, and not the question that the Act requires it to answer. The question that it should have asked is the one posed by s 70(5), whether the injury arose out of, or was attributable to, any Defence service of the appellant?
The evidence in this case is capable of providing an affirmative answer to the correct question. As Dixon J said in the passage from Henderson cited by Heerey J in the Full Court, whether an event arises in the course of an activity, or as here, out of "an activity", depends upon such matters as the nature of the person's employment, the circumstances in which it is undertaken, and what, in consequence, the person is required or expected to do to carry out the actual duties. The connexion must however be a causal and not merely temporal one.
………………
The use disjunctively in s 70(5) of the expressions "arose out of" and "attributable" manifest a legislative intention to give "Defence-caused" a broad meaning, and certainly one not necessarily to be circumscribed by considerations such as whether the relevant act of the appellant was one that he was obliged to do as a soldier. A causal link alone or a causal connexion is capable of satisfying a test of attributability without any qualifications conveyed by such terms as sole, dominant, direct or proximate.
The issue was revisited in Roncevich v Repatriation Commission [2006] AATA 660, where at [37] Justice Downes, Deputy President Hack SC and Brigadier Ermert held:
“Against this factual and legislative background the issues that arise in determination seem to us to be these:
-    was injury Defence caused;
-    what was the nature and diagnosis of the Applicant's knee injury;
-    does a knee injury satisfy over of the Statements of Principles relied upon.”
Also relevant are the comments of Davies J in Holthouse v Repatriation Commission [1982] FCA562 at 563-4:
When the cause of the death or disablement lies in the man's own personal or domestic sphere, and the War service does no more than provide the circumstances in which the court operated, is not attributable to war service.
The Respondent relied upon the above cases and, although conceding that at the relevant time homosexual relations were subject to disapproval and sanctions in the Australian community, submitted that the Applicant's homosexuality and dealing with disapproval, sanctions and avoiding relationship with women, by resort to alcohol were part of his personal sphere and not Defence caused. It was submitted that the Applicant's Defence service was no more than the setting or circumstances in which his personal causes operated.
After careful consideration of the evidence and medical reports, I prefer the opinion of Dr Miller whose reports were more detailed in findings and conclusions than those provided by Dr Hyde. I also place considerable weight upon Dr Miller’s opinion that, in the Applicant’s case, the strong family history was a major or substantial contributor to the Applicant’s alcohol use disorder.
Accordingly, I find that the Applicant alcohol use disorder was not a Defence caused disease in that it did not arise out of Defence service. I find his alcohol consumption during service was not something he was required or expected to do to carry out his duties.
I also find, for the reasons set out above, that the negative life events with chronic effects, as described in the statement of principles, was causally related to the Applicant's personal sphere and not his Defence service.
I affirm the decision under review.

I certify that the preceding 44 (forty four) paragraphs are a true copy of the written reasons for the decision herein of A G Melick AO SC, Deputy President.

.................................[sgd].......................................
Associate
Dated: 19 February 2020

Date(s) of hearing: 27 September 2018

Applicant:
Applicant advocate:

In person

Mr Bob Fitz

Counsel for the Respondent:

Mr Ken Rudge