DAMIEN PAUL QUINTON and REPATRIATION COMMISSION
[2009] AATA 250
•17 April 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 250
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/2821
VETERANS' APPEALS DIVISION ) Re DAMIEN PAUL QUINTON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal The Hon R J Groom (Deputy President) Date17 April 2009
PlaceHobart
Decision The decision under review is affirmed.
[Sgd The Hon R J Groom]
Deputy President
CATCHWORDS
VETERANS' AFFAIRS - disability pension - eligible defence service - alcohol abuse - date of clinical onset - whether experienced "category 1A stressor" or "severe stressor" - whether inability to obtain appropriate clinical management - Statement of Principles not satisfied - decision affirmed
Veterans' Entitlements Act 1986, ss 68, 70(5), 119(1)(h), 120(4), 120B(3),
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Gorton (2001) 110 FCR 321
Stoddart v Repatriation Commission (2003) 197 ALR 283
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Woodward v Repatriation Commission (2003) 131 FCR 477
Repatriation Commission v Stoddart (2003) 134 FCR 392
REASONS FOR DECISION
17 April 2009 The Hon R J Groom (Deputy President) Background
1. The applicant has applied for a review of a decision made on 24 May 2006 by the Repatriation Commission that the applicant's condition of alcohol abuse was not defence caused. That decision was affirmed by the Veterans' Review Board ("VRB") on 29 March 2007. As a result the rate of his existing disability pension was not increased.
2. The applicant rendered continuous full-time service in the Australian Army from 17 January 1979 until 7 July 1985.
3. The whole of that service in the army is "defence service" within the meaning of that term in section 68 of the Veterans' Entitlements Act 1986 ("the Act").
4. The principal issue to be determined by this Tribunal is whether the applicant suffers from alcohol abuse or alcohol dependence and whether that condition was defence caused.
5. The hearing was held in Hobart on 10 and 11 March 2009. Ms C Schokman appeared for the applicant and Mr G Purcell for the respondent. The applicant, Dr E V R Ratcliff, Dr PC Farnbach, Ms S M Quinton and Mr N J Bourke gave oral evidence. Several documentary exhibits were tendered in evidence including the "T Documents" lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.
Legislation
6. A person who has rendered defence service is eligible to receive a pension under Part IV of the Act if he or she suffers from a disease which was "defence caused". A disease is "defence caused" if it "arose out of or was attributable" to any defence service. It is sufficient if the disease was "contributed to in a material degree by or aggravated by" any defence service.
7. Section 70(5) of the Act relevantly provides as follows:
"For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken to have been defence‑caused, 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, or peacekeeping service, as the case may be, of the member;
(b) subject to subsection (8), the death, injury or disease, as the case may be, resulted from an accident that occurred while the member was travelling, during any defence service or peacekeeping service of the member but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place upon having ceased to perform duty; or
(c) the death is to be deemed by subsection (6) to be defence‑caused, the injury is to be deemed by subsection (7) to be a defence‑caused injury or the disease is to be deemed by subsection (7) to be a defence‑caused disease, as the case may be; or
(d) the injury or disease from which the member died, or is incapacitated:
(i) was suffered or contracted during any defence service or peacekeeping service of the member, but did not arise out of that service; or
(ii) was suffered or contracted before the commencement of the period, or the last period, of defence service or peacekeeping service of the member, but not during such a period of service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service or peacekeeping service rendered by the member, being service rendered after the member suffered that injury or contracted that disease; ..."
8. The standard of proof to be applied in a particular case varies according to the nature of the service rendered. For applicant's who have rendered "operational service", service in a "peacekeeping force" or service determined to be "hazardous service" there is a special reverse onus "beyond reasonable doubt". However for those who rendered other "defence service" the standard of proof is "reasonable satisfaction" (see section 120(4) of the Act).
9. The "reasonable satisfaction" standard of proof has been held to mean the ordinary civil standard of proof or "on the balance of probabilities" (see Repatriation Commission v Smith (1987) 15 FCR 327).
10. Prior to 1994 many theories had been advanced to link a particular disease to the person's defence service with little or no supporting medical/scientific evidence. To address that concern the Statement of Principles ("SOP") Scheme was introduced for claims lodged on or after the 1 June 1994. That Scheme requires that any alleged causal link between a disease and the person's service must be supported by factors set out in the relevant SOP. Those factors are considered to be based on sound medical/scientific evidence as determined by the Repatriation Medical Authority. Section 120B(3) provides as follows:
"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".
Which SOP is relevant to this application?
11. The SOP for a particular condition may be revised from time to time. When such revisions have occurred between the date of the Repatriation Commission's decision and the date of this Tribunal's decision, a question can arise as to which SOP applies.
12. At the time of the decision made by the Repatriation Commission on 24 May 2006, the then current SOP for alcohol abuse was Instrument No. 77 of 1998 (T3). That Instrument was revoked and replaced by Instrument No. 18 of 2008. Subsequently Instrument No. 18 of 2008 was itself revoked and replaced by Instrument No. 2 of 2009. Instrument No. 2 of 2009 is the SOP for alcohol abuse remaining in force at the date of this Tribunal's decision.
13. It was submitted by Ms Schokman for the applicant that the Tribunal must first apply the SOP currently in force, namely Instrument No. 2 of 2009, and if the applicant fails to satisfy the requirements of that SOP then the SOP in force at the time of the Repatriation Commission's decision, namely Instrument No. 77 of 1998, was to then be considered. It was argued that the applicant should have the benefit of an accrued right to have the claim determined by reference to that earlier SOP. Mr Purcell for the respondent agreed with that contention.
14. The Tribunal is satisfied that this agreed view as to which SOP's are to be applied is indeed an accurate statement of the law. (See Repatriation Commission v Gorton (2001) 110 FCR 321 and Stoddart v Repatriation Commission (2003) 197 ALR 283).
Diagnosis of the disease suffered by the applicant
15. In the "Statement of Issues" dated 26 August 2008, lodged on behalf of the applicant it is submitted that the applicant suffers from "... alcohol abuse/dependence within the meaning of the Statement of Principles ...". In its Statement of Facts and Contentions dated 14 October 2008, the respondent inn paragraph 2.1 concedes that the applicant suffers from "alcohol abuse".
16. Dr Ratcliff, the treating psychiatrist called by the applicant, expressed the view that the applicant was suffering from alcohol abuse and not alcohol dependence. Dr Farnbach, the psychiatrist engaged for medico-legal purposes and called by the respondent, said he believed the applicant was suffering from alcohol dependence. According to the two relevant Statement of Principles, these two conditions are mutually exclusive. It is either one or the other. Alcohol dependence is considered the more serious condition and subsumes alcohol abuse.
17. On this issue the Tribunal prefers the opinion of Dr Ratcliff. He has had the opportunity to interview and observe the applicant on a significant number of occasions. Dr Ratcliff said in evidence as follows:
"Realistically it's a case of alcohol abuse in that he's been able to reduce or even abstain from alcohol at times without the development of withdrawal symptoms". (Transcript page 75).
The Tribunal finds that explanation to be consistent with the facts before it and to be persuasive.
18. After considering the opinions of both Dr Ratcliff and Dr Farnbach and in particular the diagnostic criteria set out in the relevant Statement of Principles and the other material before it the Tribunal is satisfied that the applicant suffers from alcohol abuse and not alcohol dependence.
Clinical onset of alcohol abuse
19. In describing a number of the "factors" in the relevant SOP's reference is made to the "clinical onset" of alcohol abuse. To establish the causal link between service and the disease certain stressors and other events mentioned in the SOP's have to occur within a specified period prior to the "clinical onset" of the disease. The term "clinical onset" is not defined in the SOP's. In Re Robertson and Repatriation Commission (1998) 50 ALD 668 the Tribunal said that clinical onset was:
"... when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time".
20. "Clinical onset" does not require that there be an actual diagnosis of the disease at the time. There must however be present at that time objective signs and symptoms which indicate the presence of the disease. Those signs or symptoms must satisfy the minimum diagnostic criteria for the disease as set out in the relevant SOP's.
21. The two medical witnesses did not express a consistent and unambiguous view as to the date of onset of alcohol abuse. Dr Ratcliff, whilst acknowledging that it was difficult to determine the date of clinical onset because of "... a shortage of third party evidence ..." said as follows:
"My clinical impression after many conversations with Mr Quinton and after a number of detailed histories in the early stages, is that he probably began fairly substantial episodic drinking right from the time he was recruited and that it had become a problem within about at least four years and notwithstanding that his condition may have appeared to be below the radar for many years after that, nevertheless I believe that the difficulty was ongoing, as it had been at the time when I saw him and that his response to stress was to increase his level of drinking and to deal with the stress less effectively as a result". (Transcript page 88)
Dr Ratcliff stated in his witness statement:
"By definition a diagnosis of "alcohol abuse" would probably have been appropriate at the time of the disciplinary offences". (A3 page 2)
22. The applicant has provided a substantial amount of evidence about his heavy drinking when stationed at Townsville. The Tribunal accepts the applicant's evidence about his then drinking habits as accurate.
23. The applicant stated in oral evidence:
"I fronted up on parade a bit under the weather many, many times. We would go for a five or 10 k run and I would throw my guts up". (Transcript page 20)
The applicant also said:
"I probably just started getting aggressive, and had the odd altercation with people".
He added:
"I would probably fight on a regular basis". (Transcript page 21).
24. On 10 August 1981 the applicant was absent without leave for seven days and was charged. On 23 April 1982 he was absent without leave and was again charged with an offence. On the evidence before it the Tribunal is satisfied that both of those incidents were principally caused by excessive consumption of alcohol.
25. There is very little evidence in the applicant's army medical records of his excessive drinking. In a Medical Board Examination record of 17 June 1985, which was completed just prior to his voluntary discharge, it states: "Appearance of obesity related to daily intake of minimum of two litres of beer daily". In earlier records of 17 June 1982 and 21 May 1984 there is reference to his overweight problem. Consistent with the view expressed in the report of 17 June 1985, and taking into account the applicant's evidence of heavy drinking at the time, it is reasonable to infer that the weight problem in 1982 was also related to the applicant's excessive consumption of beer.
26. The Tribunal is satisfied after considering all of the material before it, including Dr Ratcliff's evidence, that the clinical onset of the applicant's alcohol abuse had occurred at the time of the applicant's second AWOL offence in April 1982. In the Tribunal's view at that time the applicant had already failed "... to fulfil major role obligations at work" and had experienced "recurrent social .... problems caused or exacerbated by the effects of alcohol" sufficient to satisfy those diagnostic criteria for alcohol abuse set out in the relevant SOP's. The criteria were present "within a 12 month period" as required.
27. As the Tribunal has found that the clinical onset of alcohol abuse occurred during the applicant's defence service it is not essential to the application for the Tribunal to consider whether "clinical worsening" occurred. However it finds that if there was any worsening of the condition after its onset that worsening occurred some years after the applicant was discharged from the army. This was well beyond the two year period after the alleged "extreme stressors" were experienced by the applicant during his service.
Are the requirements of the 2009 SOP satisfied?
28. Section 120B(3)(a) requires that the Tribunal be satisfied that the material before it "raises" a connection between the disease and the service rendered by the applicant. There is a considerable amount of evidence before the Tribunal which raises or demonstrates such a connection including factual evidence and the opinions provided by Dr Ratcliff and Dr Farnbach.
29. It is then necessary to consider whether the 2009 SOP for alcohol abuse upholds the contention that the disease is, on the balance of probabilities, connected with the applicant's service.
30. Clause 5 of that SOP provides that at least one of the factors set out in Clause 6 must be related to the applicant's service. Clause 6 specifies 11 different factors connecting alcohol abuse to service.
31. In the applicant's "Statement of Issues" dated 26 August 2008 it was contended that the applicant -
(a) Had experienced "extreme" stressors
(b) Suffered a psychiatric disorder (Adjustment Disorder) at the time of the clinical onset of alcohol dependence or abuse
(c) Was unable to obtain appropriate clinical management for alcohol abuse when the alcohol abuse had been suffered during the applicant's service
32. The "extreme" stressors said to have been experienced by the applicant are listed in the applicant's "Statement of Issues" as follows:
·Between the 3 and 28 July 1979 the Papua New Guinea incident ("the New Guinea incident");
·1980 superior walking in front of him during a live firing exercise as he is about to discharge his weapon ("the weapon incident");
·1982 during live fire exercises having gone the wrong way with shot landing at his feet ("the shot incident");
·1982 at the training area when an officer nearly dropped a mortar bomb the wrong way down a tube ("the mortar bomb incident"):
·During 17 May to 7 September 1983 in Malaysia when gun was held cocked to his head ("the Malaysia incident").
33. It was made clear in Ms Schokman's closing address to the Tribunal that the applicant was relying principally on the contention that he experienced a category 1A stressor within two years of the clinical onset or worsening of alcohol abuse and also the applicant's inability to obtain appropriate clinical management for alcohol abuse. Ms Schokman conceded that Clause 6(c),(d),(e),(h),(i) and (j) are not satisfied. After considering the evidence the Tribunal agrees with that view and so finds.
Ms Schokman also acknowledged that there may not be sufficient evidence to support Clause 6(a) or (f). The Tribunal is indeed not satisfied on the balance of probabilities and the information available to it that the applicant suffered a "significant psychiatric condition" at the relevant time within the meaning of that phrase as defined in the SOP. There is clearly insufficient evidence to support the contention that the applicant was suffering such a condition as defined.
34. There are therefore two remaining issues which require further consideration by the Tribunal. They are whether the applicant:
(1) Experienced a "category 1A stressor" within the period of two years prior to the clinical onset or worsening of the disease.
(2) Whether there was present an inability to obtain appropriate clinical management.
Category 1A Stressors
35. Clause 9 of the 2009 SOP includes the following definition:
""a category 1A stressor" means one or more of the following severe traumatic events:
(a) experiencing a life-threatening event;
(b) being subject to a serious physical attack or assault including rape and sexual molestation; or
(c) being threatened with a weapon, being held captive, being kidnapped, or being tortured"
36. Although the definition of a "category 1A stressor" is narrower than the definition in the earlier SOP's of "experiencing a severe stressor" there is a common element namely experiencing a life-threatening event. Following the Full Federal Court decisions in Woodward v Repatriation Commission (2003) 131 FCR 477 and Repatriation Commission v Stoddart (2003) 134 FCR 392 the Tribunal considers that a "category 1A stressor" also includes both subjective and objective considerations. The person must actually perceive the event as life-threatening and it must also be an event which someone with the person's knowledge and experience could reasonably perceive as life-threatening.
37. A question arises as to the reliability of the applicant's evidence both about each event and the impact the event had on him. After observing the applicant providing evidence and carefully considering it the Tribunal finds that although it is satisfied the incident occurred the applicant has to a degree overstated both the seriousness of the incidents and their effect on him.
The Tribunal has also taken into account the findings in the Writeway Research Service report (T Documents page 70) but also the provisions of section 119(1)(h) of the Act.
38. The Tribunal will now consider the evidence supporting each of the stressors relied upon by the applicant in order to determine whether that evidence satisfies the requirements of the 2009 SOP.
39. The "New Guinea Incident" occurred between 3 and 28 July 1979 when the applicant was serving for a short period in Papua New Guinea. He described the incident in his witness statement, which he affirmed in his oral evidence to be true and correct, as follows:
"After approximately my first week in Papua New Guinea I was out in the field. I was travelling with a company of soldiers. Three (3) of us had taken the OC to drop him off at a meeting point in the jungle and then we had to pick up six (6) to eight (8) soldiers to take out. We were inexperienced and had no radio equipment. Unfortunately we found ourselves lost in the jungle. I was extremely scared. I thought there were many dangers around us which could cause my or a member of the section's serious injury or death. I thought of the quicksand that was common in the area. I had already in the course of my tour, been involved in pulling a couple of people out of quicksand and that was why I had quite a healthy fear of it. I was also scared of the scorpions, spiders and snakes which were common to the area. Our section was lost over a 24 hour period during the day and night and over that time I felt I was going to die.
Eventually we walked out of the jungle and found our way back to where we were supposed to be. I returned to the Port Moresby barracks and I remember getting a carton of beer and sitting on the lawn and just drinking it. I continued persistently drinking a lot after this time. I averaged approximately a dozen stubbies each day that I was back at the base".
40. The New Guinea incident appears to be the principal stressor relied upon by the applicant. That was clearly the position when the matter was before the VRB. It is pointed out however that this particular incident did not occur within the two year period of the clinical onset of the applicant's alcohol abuse. In any event the Tribunal is not satisfied to the required standard that it was sufficiently severe to meet the definition of a "category 1A stressor".
41. The applicant was lost with nine or so other soldiers in the jungle in Papua New Guinea. He said he was concerned about scorpions, spiders and snakes and also thought that there may be quicksand in the area. The reality however was that they were only an hour or so walking distance from their base. They managed to return without any incident the next morning.
42. It is interesting to note that this incident was not mentioned by the applicant to Dr Ratcliff in his initial interview when he discussed with Dr Ratcliff the serious stressors which be believed had caused his alcohol problem. The Tribunal also notes that this incident was not referred to in Mr R Fitz's letter to Dr Ratcliff of 3 July 2006 (A2 page 26).
43. This incident may have been stressful and embarrassing for the applicant but it could not be said to be a "life-threatening event" in the view of the Tribunal. The Tribunal is not satisfied that a reasonable person in the applicant's position and experience would perceive the circumstances to be life-threatening. In addition, despite the applicant's claims it is not reasonably satisfied that the circumstances caused the applicant himself to subjectively perceive that they were life-threatening. Parts (b) and (c) of the definition plainly do not apply.
44. At the hearing no reliance was placed on the 1980 so-called "weapon incident" as satisfying the definition of a "category 1A stressor". There is no reference to this particular incident in the applicant's statement dated 1 October 2008 (A1) upon which his oral evidence was based. It is clear that that incident does not satisfy the requirements of the definition of "category 1A stressor" in the 2009 SOP.
45. The applicant described the 1982 "shot incident" as follows:
"In 1982 I was on a training exercise. The exercise involved live firing. The group I was with travelled in the wrong direction which brought us into range. I recall live rounds of ammunition falling at my feet and around me. I was extremely scared. I thought one of us, including myself, could be shot and die. After this incident the fear I had felt in Papua New Guinea returned and my drinking again increased. Again as is usual the people involved in this incident including myself would meet up in the mess and talk about the near miss over alcohol".
46. This incident was not officially reported and there is no other corroborative evidence to confirm the applicant's account. The Commanding Officer in C Company, the unit involved in the incident, has no recollection of this particular incident. It is important to note that the applicant explained in evidence that it was an exercise where rounds were deliberately fired near soldiers so that they could become accustomed to operating under fire. This would obviously cause a degree of apprehension to all of the soldiers involved. It is also noted that in a letter from Dr Ratcliff to the Department dated 20 March 2006 it is said that the applicant "recalls a number of fear provoking experiences". The letter then refers to "a number of close calls in live firing exercises". So it was then not one but several incidents which the applicant had apparently referred to. (A2 page 17).
After considering all of the evidence the Tribunal is not satisfied on the material before it and to the standard of proof required that the applicant on this occasion experienced a life-threatening event. It is not reasonably satisfied that the rounds went as close to the applicant as suggested and does not consider the objective element of the test to be met. This incident does not satisfy the definition of a "category 1A stressor".
47. The applicant explained the "mortar bomb incident" in the following terms:
"Also in 1982 I was at the high range training area when I saw a trainee officer about to place a live mortar round in the firing tube the wrong way round. I was extremely scared as this could have caused the mortar to explode causing injury to the officer, those around him including myself. Fortunately the officer was stopped in time and the mortar was not placed incorrectly in the tube. The incident made me fear for my life and again my drinking increased as I became fixated on this incident.
It had become typical that when incidents such as these occurred my reaction would be to meet up with the men involved at the mess and talk it over alcohol. My drinking would become excessive and difficult for me to control. I would drink far more than those around me".
48. Again there is no direct corroborative evidence of the incident. It is said that such incidents are "extremely rare but not unheard of". (T documents page 74). The incident would have obviously happened very quickly with the mortar apparently being immediately being placed correctly in the tube. No-one was hurt. It was obviously not considered sufficiently serious to warrant an official report. It is noted that the applicant was the person who stopped the trainee officer putting the mortar in the wrong way.
The applicant was asked during cross-examination:
" So when you saw this officer pick up the mortar and purport to put it in the wrong way round, you immediately stepped in to prevent that happening; didn’t you?"
The applicant:
"Absolutely"
The applicant said that the training officer:
"... thought it was a joke".
He added:
"He should have had more sense". (Transcript pages 35 and 36)
After considering all of the material before it the Tribunal is not satisfied that the applicant genuinely perceived this incident to be a life-threatening event. It does not satisfy the definition of a "category 1A stressor".
49. The next incident was "the Malaysian incident". It is described by the applicant as follows:
"From 17 May to 7 September 1983 I was deployed to Malaysia. Whilst in Malaysia I had a cocked weapon held to my head by a Malaysian guard. This caused me to feel extreme fear for my own life. After this incident I would have terrifying day time recollections of the incident and nightmares. I struggled to sleep and I was incredibly anxious. My drinking spiralled out of control".
50. There is no evidence corroborating the applicant's account. Again there was no official investigation or report on the incident. Apart from the Malaysia guard there was only one witness to the incident, Private Modra. Private Modra is now deceased.
51. The applicant says that on the day of the incident he had been drinking during his absence from the base. He said that he had a "couple of stubbies" but then later said "probably only six". It is plain from his evidence that he was not sure how much alcohol he had consumed. The applicant was unsure as to the time he returned to the base but said "it was dark".
52. It seems to the Tribunal that it would have been an extraordinary action for a Malaysian guard to point a loaded rifle at the head of an Australian soldier simply because the soldier was slow in showing his identity card to the guard. Although the Tribunal is satisfied that some kind of incident did occur at the base it is not satisfied that the applicant's account is reliable and accurate. The Tribunal is not satisfied that the applicant subjectively perceived this incident to be life-threatening. It is not satisfied that in this incident the applicant experienced a "category 1A stressor" within the true meaning of that phrase in the relevant SOP.
Inability to obtain appropriate clinical management
53. Inability to obtain appropriate clinical management is one of the factors in Clause 6 of the 2009 SOP which can connect the applicant's alcohol abuse to his service. (See Clause 6(k)).
54. The meaning of "inability to obtain appropriate clinical management" has been discussed in several cases including Brew v Repatriation Commission [1999] FCA 1246; Repatriation Commission v Wedekind [2000] FCA 649 and a relatively recent decision of this Tribunal in Carroll and Repatriation Commission [2007] AATA 1532.
55. It was said by Kenny J in Wedekind that in the course of determining whether it was satisfied of this particular matter there was a need to identify a number of issues including:
·The date the disease was contracted.
·The appropriate form of clinical management.
·Whether the applicant was able to obtain that form of management.
·Whether that inability was related to his service.
56. Unlike a number of other cases this is not one where the applicant had a long list of alcohol caused issues and problems during his service and where it was known to medical personnel that he did have a medical condition but then did not receive any appropriate treatment for that condition.
57. As stated in paragraph ...... above the clinical onset of the disease occurred in April 1982. There is little evidence about the sort of clinical management or the type of clinical management that would have been appropriate for someone in the applicant's position. On that issue Dr Ratcliff said:
"At that level it would be chiefly a matter of confronting him with the impact of the level of alcohol that he was using and a counselling approach, because at that stage there is no question of withdrawal symptoms or a worsening of a person’s health if they stop drinking. When they reach the stage of alcohol dependency, that becomes very different. If a person stops drinking they may become very sick indeed. At the level of alcohol abuse a person’s general condition improves if they reduce their alcohol level. So it would be at a level of counselling about what is the situation, what the impacts of alcohol are, and also considering if there are any underlying reasons for the high use of alcohol, other than the social pressure or the use of it to deal with anxiety or some other strains". (Transcript page 85)
58. In the course of cross-examination by Mr Purcell for the respondent, Dr Ratcliff was asked:
"How do you say or are you aware of any evidence whereby this man became unable to obtain appropriate clinical management?
Dr Ratcliff answered:
"The inability resulted from the matter we discussed right at the beginning of this examination, that the army culture tended to see alcohol use at a high level, and even some impairment and some disciplinary problems, as being within the normal range. If a similar level of disability resulted from anything else it would be a matter of medical report, but the culture within the service at the time was to regard this as being fairly normal behaviours to be dealt with either as a disciplinary matter or ignored. That made the likelihood that it would be seen in a medical light unlikely". (Transcript page 84)
59. In this case the applicant served in the army for some six and a half years. He enlisted in January 1979 and it was not until April 1982 that the clinical onset of his disease occurred. There is no evidence that at that time or during his remaining three years of medical personnel in the army knew that he had a serious alcohol problem. There are references in the service records to the applicant being overweight. A short time prior to his discharge it is mentioned that he was overweight because of his consumption of beer. However nowhere in his records is there any indication that he had a serious alcohol problem. There is also no evidence that the applicant himself genuinely recognised that he had a problem with alcohol and needed treatment and also no evidence that he actually sought treatment for his condition from anyone in the army or any civilian medical service.
60. There is also no evidence before the Tribunal indicating the applicant gave consideration to seeking some counselling or other treatment but decided against it because of the culture that existed in the army or peer pressure not to take such a course of action.
61. The Tribunal is not satisfied on the balance of probabilities that the applicant was unable to obtain appropriate clinical management for his alcohol abuse.
Does the applicant satisfy the requirements of the 1998 SOP
62. As previously mentioned if the applicant does not satisfy the requirements of the 2009 SOP it is then necessary to then also consider whether he satisfies the 1998 SOP which was the then current SOP when the Repatriation Commission made its decision.
63. The 1998 SOP refers to "experiencing a severe stressor" rather than to experiencing a "category A1 stressor" or experiencing a "category 1B stressor". It is also noted that the period of time between the clinical onset of the disease and the particular stressor is one year in the 1998 SOP and not two years as in the 2009 SOP.
64. In Clause 8 of the 1998 SOP the following definition appears:
“experiencing a severe stressor” means, the person experienced,
witnessed or was confronted with, an event or events that involved actual
or threat of death or serious injury, or a threat to the person’s or other
people’s physical integrity, which event or events might evoke intense
fear, helplessness or horror".
65. Although the definition of experiencing a severe stressor in the 1998 SOP has a wider import than the definition of a category 1A stressor in the 2009 SOP the Tribunal concludes that it is not satisfied on the material before it that the applicant experienced a severe stressor.
66. There was obviously no death or serious injury involved and in the Tribunal's opinion no threat of death or serious injury or threat to the person's physical integrity which might invoke fear, helplessness or horror. It relies on the detailed reasons already provided when considering whether the requirements of the 2009 SOP are satisfied.
67. The Tribunal finds that it is not satisfied on the balance of probabilities that any of the incidents, events or circumstances relied upon by the applicant have the qualities required to satisfy the broader definitions inn the 1998 SOP including the elements of "serious injury", "physical integrity" and "invoking intense fear, helplessness or horror".
68. The wording of factor 5(e) in the 1998 SOP "inability to obtain appropriate clinical management for alcohol dependence or alcohol abuse" is identical to the wording of that provision in the 2009 SOP. That factor is not satisfied for the reasons previously expressed.
Conclusion
69. The applicant does not satisfy the relevant factors for the 2009 or 1998 SOP's for alcohol abuse. The necessary connection between the applicant's condition and his eligible service is not established. The Tribunal therefore finds that the applicant's condition is not defence-caused.
Decision
70. The Tribunal affirms the decision under review.
I certify that the 70 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom (Deputy President)
Signed: ..................................
R Hunt (Administrative Assistant)Date/s of Hearing 10 & 11 March 2009
Date of Decision 17 April 2009
Solicitor for the Applicant Ms C Schokman, Ogilvie Jennings
Counsel for the Respondent Mr G Purcell
Solicitor for the Respondent Mr R Douglass, Repatriation Commission
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