Darrell Wallam and Repatriation Commission
[2014] AATA 679
•17 September 2014
[2014] AATA 679
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/1304
Re
Darrell Wallam
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Dr M Denovan, Member
Date 17 September 2014 Place Brisbane The Tribunal affirms the decision under review.
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Dr M Denovan, Member
CATCHWORDS
VETERANS' AFFAIRS – Benefits and entitlements – Eligibility for pension – Anxiety disorder – alcohol dependence – death of a significant other – No connection between eligible defence service and condition – Not entitled to any benefits – Decision affirmed.
LEGISLATION
Veterans’ Entitlement Act 1986 (Cth) ss 70, 120, 196B
CASES
RE Repatriation Commission v Nancy Law [1980] FCA 92
Roncevich v Repatriation Commission [2005] HCA 40
McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354
Re Eckersley and Minister for Capital Territory (1979) 2 ALD 303
SECONDARY MATERIALS
Statement of Principles concerning Anxiety Disorder Instrument No. 102 of 2007 as amended by Instrument No. 43 of 2010 and Instrument Number No. 16 0f 2011
Statement of Principles concerning Alcohol Dependence Instrument No. 2 of 2009
REASONS FOR DECISION
Dr M Denovan, Member
17 September 2014
INTRODUCTION
The applicant in these proceedings is Mr Darrell Wallam (“applicant”). The applicant served in the Australian Army (“the Army”) from 7 December 1970 to 6 December 1979. Only service from 7 December 1972 is eligible defence service within the meaning of the Veterans’ Entitlements Act 1986 (“the Act”).
The applicant has been diagnosed with anxiety disorder and alcohol dependence. His younger brother, Tony (Anthony) Wallam, enlisted in the Army in 1973. Approximately one year after enlisting, Tony went missing and his decomposed body was found some weeks later in a dam. The applicant claims his psychiatric conditions developed as a consequence of the way the Army treated him following the death of his brother.
He has sought medical treatment and pension for incapacity from the conditions under the Act on that basis. The Repatriation Commission denied his claim, and that decision was affirmed by the Veterans’ Review Board (“VRB”) on 18 January 2013.
The diagnosis of anxiety disorder and alcohol dependence has been provided by the applicant’s treating psychiatrist, Dr Balkin, and is not in dispute. Both parties accept
Dr Balkin’s opinion that the clinical onset of both conditions was in 1974.
LEGISLATION AND ISSUES
Under s 70(5)(a), a disease contracted by a member of the Forces is taken to be a defence-caused disease if the disease “arose out of, or was attributable to, any defence service”. Section 70(7) provides in effect that where, in the opinion of the Commission, the incapacity of a member of the Forces was due to a disease that would not have been contracted but for the member having rendered defence service, the incapacity shall be deemed to have arisen out of that disease, and the disease is deemed to be a
defence-caused disease contracted by the member.
The issues that have arisen in the present matter are to be decided in accordance with the civil standard of proof, that is, on the balance of probabilities. This follows from
s 120(4), which provides that the Tribunal shall decide the matter to its reasonable satisfaction. Section 120(6) provides that nothing in s 120 or in any other provision of the Act is to be taken to impose “any onus of proving any matter that is, or might be, relevant to the determination of the claim or application” upon a claimant or applicant for a pension.
There is no statutory definition of the concept of an death, injury or disease being “connected with” service, but the reference in s 196B(3) to a “factor related to service” is expounded in ss 196B(14)(a), (b) and (e). This provides relevantly that a factor causing, or contributing to, a disease is “related to service” render by a person if:
(a) it resulted from an occurrence that happened while the person was rendering that service; or
(b) it arose out of or was attributable to that service;
(e)in the case of a factor causing, or contributing to, an injury – it resulted from an accident that would not have occurred:
(i) but for the rendering of that service by the person; or
(ii) but for changes in his or her environment consequent upon having rendered that service.
The question for me is, with reference to the relevant Statement of Principles (“SoPs”), whether there is a connection between the applicant’s anxiety disorder, alcohol dependence, and his defence service.
The relevant SoPs for the applicant’s conditions and eligible defence service are Anxiety disorder Instrument No. 102 of 2007, as amended by Instruments No. 43 of 2010, and No. 16 of 2011; and Alcohol dependence Instrument No. 2 of 2009.
The applicant relied on the following factors from those SoPs:
Anxiety disorder factor, cl 6(a)(ix):
Experiencing the death of a significant other within the one year before the clinical onset of anxiety disorder
...
“a significant other” means a person who has a close family bond or a close personal relationship that is important or influential in one’s life”
Alcohol dependence factors contained in cl 6:
(a) having a clinically significant psychiatric condition at the time of the clinical onset of alcohol dependence or alcohol abuse; and…
(d) experiencing the death of a significant other within the five years before the clinical onset of alcohol dependence or alcohol abuse
CONSIDERATION
For the applicant, Mr Whitehead contends that the applicant’s conditions are attributable to the collective actions of the Army. He contends that though each action in itself may not be enough to establish a connection, when viewed as a whole there is a sufficient connection. Those individual actions are as follows:
·Delay between the death of the applicant’s brother and the time he was notified by the Army. The applicant claims he was not notified until late July, which was about one month after his brother’s body was found;
·The applicant was prevented from attending the funeral of his brother, the member of his family to whom he was closest;
·The Army did not offer the applicant any time off, nor was he offered any counselling or pastoral care; and
·
The applicant was denied access to his brother’s possessions by the Army when he requested permission to take them with him when he was travelling to
Western Australia on leave in 1976.
Mr Whitehead contends that the applicant had total faith in the Army due to the institutionalised circumstances of his childhood. Mr Whitehead also contends that each event mentioned above served to erode his faith in the Army. It was further contended that it should be taken into consideration that the deceased was working at the Army base when he went missing and his body was found in a dam located on the Army base.
For convenience, I will consider the events in the order raised by Mr Whitehead. Before doing so, some background information helps to understand the applicant’s circumstances.
The applicant attended the hearing and gave evidence. He said when he was aged seven, he was taken from his family and raised in a church run children’s mission. In 1969 when he turned 16 years of age he left the mission, and when he turned 17 he joined the Army. He said he joined the Army in part as it was an institution, and he had become institutionalised after living in the children’s home. Another factor that influenced him joining the Army was the Vietnam War, as he wanted to serve his country and do the “right thing”. The applicant said that prior to joining the Army he had considered becoming a diesel mechanic and working in the mines. He said he had lined up an apprenticeship, however he let that opportunity go as he wanted to serve his country and fight in Vietnam.
The applicant said he was very close to his brother. Tony was one year younger than himself, and they shared the same dormitory in the children’s home. Although they were close, the applicant had no contact with his brother from the time he left the children’s mission in 1969 until 1973.[1] At the time, the applicant was posted in Sydney. He received a phone call from Tony, who had enlisted in the Army and was in Wagga for his recruitment training. The applicant travelled from Sydney to Wagga to visit his brother. That was the only time that he saw Tony, who was subsequently posted to Townsville. The two brothers spoke on the phone about four to five times a year, until his brother’s death some 14 months later.
[1]Military records indicate Mr Anthony Wallam enlisted on 26 March 1973.
Asked how he felt his anxiety disorder was related to his service, the applicant changed his story, and said that he felt responsible for his brother’s death, because he was the reason his brother joined the Army. He said prior to joining, his brother rang him and asked what it was like in the Army. He told his brother it was okay, so his brother joined. The applicant could not explain the inconsistency of his testimony. I note that when asked how he thought his anxiety disorder was related to his service by the VRB, he is reported as saying he did not know.
The applicant is the oldest of five boys. His youngest brother is the only other surviving sibling. He had no contact with his youngest brother for 43 years. He now keeps in contact on Facebook and rings his brother weekly. The middle brother, Jeffry, drowned in his early 20’s. The second youngest brother, Doug, died of a heroin overdose in 2000.
The applicant said that he commenced drinking at the age of 19. He drank mostly spirits, on Friday and Saturday nights, and would only have two to three drinks each night. Although he was under the legal age for drinking, he looked older than he was, and he was never challenged. After his brother died, his drinking pattern changed. He drank every night and consumed up to three quarters of a bottle of spirits. He claims that his change in drinking behaviour had nothing to do with the fact that he reached the legal age of 21 years to drink alcohol in July 1974.
Could the Army have informed the applicant about his brother’s death sooner?
There is no evidence as to when the applicant was advised of his brother’s death. He appears to have only a vague recollection of being told of his brother’s death. He told the VRB that he had difficulty recalling the circumstances, but he thinks he was called into the office of the Regimental Sergeant Major (“RSM”). He thinks this might have been in late July. The body of his brother was found in late June 1974. Even if the applicant was not informed until the end of July, as he supposes, there is no evidence that an error on behalf of the Army attributed to the delay.
The applicant agreed that the Army recorded his brother’s next of kin was their father. The evidence in the T-documents indicates that the Army had difficulty locating the applicant’s father, who had apparently moved from South Australia to Western Australia prior to the death of his son. The delay in informing the applicant about his brother’s death appears to have been due to a combination of the difficulties in locating the next of kin of the deceased, and the fact that the Army had not been informed the deceased was related to the applicant. Had the Army or anyone else been able to contact the deceased’s relatives, then I would assume the either the Army may have realised there was a family connection earlier, or applicant would have been advised about his brother’s death by a relative he was on speaking terms with, prior to finding out from the Army. It is not clear how the Army became aware that the deceased was related to the applicant. The applicant agreed he had not made the Army aware that he had a brother serving. He claims he had friends in the Army, the same rank as himself, who knew his brother was serving. I do not see how that assists his claim.
There is no material before the Tribunal that supports the applicant’s claim that the Army could have, or should have known about the family relationship and advised the applicant any sooner than they did.
Had the applicant pursued a carrier as a diesel mechanic in the mines, it is likely that an even longer period of time would have transpired before he was informed about his brother’s death. At the time of his brother’s death, the applicant claims he was not in regular contact with any other family member, and there is no suggestion that his service in the Army contributed in any way to his lack of family communication.
Was it due to the Army that the applicant was unable to attend his brother’s funeral?
At the hearing the applicant admitted it was too late for him to attend Tony’s funeral, as the funeral would have taken place by the time he was informed of the death. Documentary evidence form the Metropolitan Cemeteries Board confirms that to be the case. Records indicate that Tony was buried on 8 July 1974. As stated above, the applicant thinks he was told about his brother’s death in late July. He said he did not ask about the funeral and did not seek permission to attend. I find that the Army played no part in preventing the applicant from attending the funeral of his brother. The reason he did not attend was due to the fact that the next of kin was not able to be located prior to the burial, and the Army had no knowledge of the relationship between the deceased and the applicant.
In a report by Dr Balkin dated December 2012, he states that the applicant was denied permission to attend his brother’s funeral. As discussed, this is not accurate. In any case, Dr Balkin did not causatively link the lack of ability to attend the funeral with the genesis of the psychiatric conditions.
Lack of support and counselling
The applicant said that after he was told about his brother’s death, he immediately returned to work. He said he was not approached by anyone offering support, and was not offered counselling or pastoral care. He did not ask for any time off, nor did he seek permission to attend the funeral. He said that he was aware that the usual procedure when there was a death in the family was for the Army to organise time off and arrange transport to the funeral. He felt disappointed that this did not happen in his case. He also said, “I was probably better off staying at work, it was too late”.
The applicant said that he did not speak to anyone in relation to his feelings about his brother’s death. He said that anyone born in that era would understand that you keep such feelings to yourself. He did not seek assistance because he thought he was doing all right. He eventually sought medical help on the insistence of his wife.
Whist it is unfortunate that the applicant did not receive counselling, I do not consider the Army had an obligation to offer any. Had he not been serving in the Forces, he would have likely not been offered counselling by other employers.
Dr Balkin did not identify lack of counselling, or another of the other above events, as causally associated with either anxiety disorder or alcohol dependence.
Lack of knowledge about the cause of his brother’s death
The applicant said that not knowing exactly what happened to his brother upset him. He was told his brother drowned, but that made no sense to him because his brother was a strong swimmer. He recalled that when he and his brother were young, they would dare each other to swim across the flooded river, a task that involved being hit regularly by the carcasses of dead sheep and other stock, plus limbs of trees and other debris. The applicant said that he became sullen because no information about how his brother died was coming through. The applicant said “I do not know why or how he died, and it is like a cold case… it is the unknown that gets me”.
The applicant said that he left the Army because he was unimpressed by what happened and he had had a “gut full” of the Army. After he got out of the Army, the circumstances of his brother’s death were still on his mind. He wrote to the Army in an attempt to retrieve medical records to find out further information about his brother’s death.
Dr Balkin appears to concur that the lack of knowledge about the circumstances of his brother’s death is cause of the applicant’s psychiatric problems. He opined that the applicant’s generalised anxiety disorder and alcohol dependence are both due to the effects of his brother’s mysterious death in 1974 whilst serving in the Army. Dr Balkin noted that the applicant presented in March 2012 to his practice because he “finally wanted to deal with the uncertainty of not knowing what happened to his brother”.
In a Ministerial Representation, dated 8 August 1979, R.G. Elder, OIC CARO states that
[T]he late PTE Wallam drowned in a waterhole at Lavarack Barracks between the period 28 May 1974 and 29 June 1974. The Coroner was unable to determine the exact cause of death due to the decomposition of the body.
Unfortunately at the time the Army advised the applicant of his brother’s death, there was very limited information available about the circumstances. I accept that the Army told the applicant all that they knew, and there is no evidence that the Army held back information. There is no suggestion that the Army could have, or should have, done anything further to determine the exact cause of death.
Inability to access his deceased brother’s possessions
The applicant said he was distressed when he was returning to Perth in 1976, and he asked the Army if he could take his brother’s possessions back with him. He was told his was unable to do this, as it was arranged that his brother’s possessions would be shipped. He thought that since he was going back to Perth, there might have been a trunk that he could have used. However when he was told the items were going to be shipped he said he did not worry about it.
In a letter from the Army to The Aboriginal Legal Services dated 26 August 1974, it is stated that the personal effects of Pte Tony Wallam were forwarded to Brisbane on
17 July 1974, and should have now reached the Military Personnel Depot in Perth. The letter goes on to say that the deceased parents have recently moved from South Australia to Perth and the new address is not known. Further correspondence between the solicitor representing the relatives of the late Pte Tony Wallam and the Army are included in the T-documents, and it appears the personal effects of the deceased were dispatched to his father about September 1974. Correspondence from the Chief Commissioner of Police to the Army on 3 November 1977 indicates that personal property found of the deceased was still held by the police at that time. The letter sought assistance in locating the deceased’s next of kin.
The conclusion that must be made from this evidence is that by the time the applicant asked for access to his brother’s possessions, it was not possible for the Army to pass them to him, as the possessions of his brother (other than those held by the police) had already been shipped to Perth. In any case, even if his brother’s possessions had still been located in Brisbane, as the applicant was not his brother’s next of kin, he had no legal entitlement to his brother’s possessions.
As Dr Balkin indicated the clinical onset of the applicant’s psychiatric conditions was in 1974, events occurring in 1976 such as this, could have had no bearing on the causation of those conditions. There is no suggestion in the medical evidence that his psychiatric conditions have been caused or aggravated by his inability to access his brother’s possessions.
CONCLUSION
I accept that the deceased was a family relative of the applicant, and that the applicant was close to his brother. For the applicant’s claim to succeed, there must be a causal connection between the factors in the SoPs relied upon and the applicant’s service.
Although the relevant legislation does not impose an onus of proof, it remains necessary for a party asserting facts to adduce evidence which would support a finding by the tribunal that those facts exist.[2]
[2] See McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, and Re Eckersley and Minister for Capital Territory (1979) 2 ALD 303, at [18].
No evidence supports the contention that the Army was responsible for the delay between the death of Pte Tony Wallam and the time the applicant was informed of the death, or the fact that he was unable to attend his brother’s funeral. No evidence supports the contention that the delays in being informed about his brother’s death, and/or his inability to attend the funeral, or the lack of counselling and other support were facts that contributed to the applicant developing either of the two psychiatric conditions claimed.
I accept that it is the uncertainty about the circumstances surrounding his brother’s death and the cause of his brother’s death that has led to the applicant developing anxiety disorder and alcohol dependence.
It is more than likely that the applicant would have been troubled by the uncertainty surrounding his brother’s death whether or not he was serving in the military. The Army was not in possession of information that could have put the applicant’s mind to rest. It is unfortunate that no more is known, but the lack of information is not in any way related to the applicant’s service. At the hearing, the applicant himself said that it is no one’s fault, and there was no one to blame. Had the applicant been working elsewhere at the time of his brother’s death, no further information about his brother’s death would have been available.
It does not advance the applicant’s claim that Pte Tony Wallam was a serving member at the time of his death. The applicant was not a dependent of his brother, and it is only dependents of the deceased that may, in certain circumstances, be compensated for the death of a member. I do not accept the recently advanced contention that, but for the applicant’s advice, the deceased may not have joined the Army. There is no mention of such a contention in either the treating psychiatrist’s report, or any other of the statements made by the applicant to either the respondent or the VRB. The death of his brother was related temporally only to the applicant’s service.
Mr Whitehead referred me to the High Court decision of Roncevich v Repatriation Commission[3] and the Federal Court decision of Re Repatriation Commission v Nancy Law.[4] He said these cases are authority for the position that the expressions ‘arose out of’ and ‘attributable’ reflect a legislative intention to give a broad interpretation of ‘defence-caused’. A causal link is established even if the connection with a person’s service is not the sole or dominant cause of the condition being considered.
[3] [2005] HCA 40.
[4] [1980] 47 FLR 57.
In Roncevich, the applicant injured himself whilst attending a military social gathering. It was held that the injury was attributable to his military duties. The matter of Law involved the death of a war service veteran, and was hence conserved with a different standard of proof to this matter. I do not consider either of these cases helps advance the applicant’s claim. The only association between the development of his psychiatric conditions and his service is temporal.
I am not satisfied there is a sufficient, or casual, connection between the applicant’s conditions of anxiety disorder and alcohol dependence, and his defence service, that satisfies the legislative requirements.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 47 (forty -seven) paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member ...........................[Sgd].............................................
Associate
Dated 17 September 2014
Date of hearing 25 August 2014 Advocate for the Applicant Jamie Whitehead, Whitehead & Associates Solicitors
Advocate for the Respondent Bruce Williams, Department of Veterans' Affairs
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