Davies and Repatriation Commission
[2006] AATA 305
•3 April 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 305
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2005/238
VETERANS’ APPEALS DIVISION ) Re BERYL DAVIES Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date3 April 2006
PlaceMelbourne
Decision The decision under review is affirmed. ..............................................
Senior Member
VETERANS’ ENTITLEMENTS – widow’s application – remitted from Federal Magistrates Court – service on Thursday Island commenced four months before Japanese surrender – whether alcohol habit commenced before or during service – whether commenced on Thursday Island‑ whether civilian employment after discharge contributed to alcohol habit – kind of death – whether alcohol abuse or cirrhosis of liver – decision affirmed
Roncevich v Repatriation Commission [2005] HCA 40
Roncevich v Repatriation Commission [2003] FCAFC 146
Repatriation Commission v Law (1981) 147 CLR 635
Goward v The Commonwealth (1957) 97 CLR 355
Repatriation Commission v Tuite (1993) 39 FCR 540
Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Towns [2003] FCA 1262
REASONS FOR DECISION
3 April 2006 Mr John Handley, Senior Member 1. This application was heard on 1 and 2 February 2006, having been remitted from the Federal Magistrates’ Court. It was previously the subject of an appeal in proceedings PMLG 326/2004 arising out of a decision made by me in Tribunal proceedings V2002/797 on 23 January 2004.
2. The representatives of the parties agreed shortly prior to the commencement of the hearing before the Magistrate that the appeal be allowed and be remitted upon agreed terms. Unfortunately, the parties did not maintain the “agreement” and a dispute emerged concerning the ambit of the remittal. I decided (in written reasons published on 27 September 2005) after hearing argument, that the remittal was confined to the following, being the “agreement” which was submitted to the Magistrate and which the Magistrate Ordered as the remittal:
1.The applicant contended before the Administrative Appeals Tribunal (the AAT) that her deceased husband, who was a veteran within the meaning of the Veterans’ Entitlements Act 1986 (the VE Act), had died of cirrhosis of the liver and that his cirrhosis of the liver was caused by consumption of alcohol which arose out of or was attributable to his eligible service with the Navy
2.Under s 196B of the VE Act, Statements of Principle [sic] are determined by the Repatriation Medical Authority if it is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to eligible war service (or to other specified forms of service) rendered by veterans.
3.The Statement [sic] of Principles No 36 of 1998 concerning cirrhosis of the liver, included “consuming at least 220kg of alcohol (contained within alcoholic drinks) within any 10 year period before the clinical onset of cirrhosis of the liver” as a factor which could connect cirrhosis of the liver with the circumstances of a veteran’s service. (There was no dispute that the veteran met that factor in so far as he had consumed that quantity of alcohol in a 10 year period. What was in issue was the connection between the factor and his eligible service.)
4.The AAT made findings, in paragraphs 59 and 60 of its reasons for its decision, to the effect that whether the veteran’s “consuming of at least 220kg of alcohol (contained within alcoholic drinks) within any 10 [sic] period” was connected to his eligible service was to be determined by reference to the factors in Statement [sic] of Principles No 77 of 1998 concerning alcohol dependence or alcohol abuse.
5.The parties agree that the AAT erred in limiting its fact finding, as to whether there was a connection between the veteran’s service and his consumption of the requisite amount of alcohol over any 10 year period prior to the clinical onset of cirrhosis of the liver, to the factors in the Statement [sic] of Principles concerning alcohol dependence or alcohol abuse.
3. The late Mr Davies was born on 18 September 1925 and died on 9 June 1990. The cause of death was certified as “hepatic coma; cirrhosis of the liver; chronic alcoholism”. He enlisted in the Royal Australian Navy (“RAN”) on 5 September 1944 and was discharged on 27 August 1946. The relevant service for these proceedings was upon Thursday Island between 7 March 1945 and 15 April 1946. Mr Davies was then engaged in eligible service and the liability of the respondent is to be determined on the balance of probabilities. For the reasons published after the first hearing, the deceased did not engage in operational service within the meaning of s 6A item 1(d) of the Veterans’ Entitlements Act 1986 (“the Act”).
beryl audrey davies
4. Mrs Davies is the applicant widow in these proceedings. She and the late Mr Davies married in 1949 in Kerang.
5. Mrs Davies said that she knew her husband when they were teenagers in Kerang, in Northern Victoria, prior to his enlistment. She said that she socialised with him and other youth in the district, mainly in connection with church activities and by that association she knew he did not drink alcohol prior to enlistment. Mrs Davies also said that she was familiar with other members of his family, including his parents and knew that the family did not drink alcohol. She said that she was aware that Mr Davies returned to Kerang from time to time on leave during the period of his enlistment but she did not then spend much time with him. They commenced a courtship after his discharge. It was during that period of time that she became aware that he was drinking alcohol and smoking cigarettes, which he did not consume prior to enlistment.
6. After discharge and before they were married, Mrs Davies said that her husband obtained employment as a clerk with a real estate and livestock agency in Quambatook, a small town approximately half an hour away from Kerang. She said that her husband worked there during the week and returned to Kerang on weekends. When they socialised on weekends he consumed beer and drank heavily. Later, when he returned to work on a full time basis in Kerang, she saw more of him and observed that he did drink alcohol on a regular daily basis. After they married, she said that he drank beer during the day, after work and at night. She estimated that he drank between two and three bottles of full strength beer each night at home. (In cross-examination Mrs Davies estimated her husband drank four to five bottles of beer per day). She recalled that her husband was irritable and depressed and on occasions he was unsettled and disagreeable. She thought that he was upset by his appearance following a laceration above his left eye during service on Thursday Island. She said the laceration was crudely sutured and a visible scar existed. Additionally she said that his left eyebrow “dropped”. She said that her husband was conscious of his physical appearance and people laughed at him.
7. In relation to his service on Thursday Island, Mrs Davies said that her husband had “learnt to drink . . . up there” (transcript, page 20). She said that his service on Thursday Island was at a refuelling depot where he and others were nervous and worried. She understood that his drinking habit commenced on Thursday Island because of a combination of apprehension, (because the fuel depot was thought to be subject to enemy attack), its location in the Pacific Ocean and the ability to drink when not on duty.
8. Mrs Davies said that her husband’s mother had described him as being “a different boy” after discharge compared to the person that he was prior to enlistment. Those observations were understood by Mrs Davies to be referrable to her husband having commenced a drinking and cigarette habit during service and to the quantities of alcohol that he consumed after discharge.
9. In cross-examination, Mrs Davies said that prior to her husband enlisting her family and his family respectively lived on farming properties on opposite sides of Kerang. In about 1942 her family sold their farm and moved into Kerang. Some time earlier Mr Davies’ family sold their farm and his family also moved into Kerang. She first met him when both families were living in Kerang. His family lived in Albert Street, Kerang and her family lived in Muir Street. The home of each family was separated by approximately one residential block. She recalled that her husband left school at the age of 14 and commenced working in approximately 1939. Mrs Davies was then attending school. She recalled that her husband had two brothers with whom she and others socialised. She said that social opportunities in Kerang pre-war were centred around a local church, a picture theatre and a dance hall on Saturday nights. She was adamant that her husband did not drink alcohol then and would not have been able to obtain alcohol from local hotels.
10. After Mr Davies enlisted, Mrs Davies said that his parents separated and one of his brothers, who lived with his father, became “wild”. She said that he had no discipline, was unemployed and was upset by the separation of his parents. Her husband’s mother moved into a boarding house in Kerang. Mrs Davies recalled that her husband was “in the Islands” at the time of separation and was unable to return to Kerang to assist his mother. She said this caused him some anxiety. Later when Mrs Davies met members of his family she said “we all helped her sort of get her life together again” and eventually her husband’s mother lived with them after they were married. Mrs Davies said that she saw a great deal of his family members and became aware that prior to enlistment his parents were teetotallers. She knew of his brothers by their mutual association with the local church. Mrs Davies said that his brothers did not drink alcohol prior to her husband’s enlistment but did subsequently.
11. After discharge from service, Mrs Davies said that whilst her husband worked during the week in Quambatook and returned to Kerang on weekends he also travelled to Kerang mid week for livestock sales. She agreed that he consumed alcohol after discharge but was not aware of the quantities that he consumed during the week when he was in Quambatook. She and Mr Davies married in 1949 after they had been courting for approximately 18 months. He was described by her (to Dr Cole) as a gentleman, as clever and as a nice person who played sports but who was a heavy drinker. As a stock and station agent, he advised clients on the purchase of sales of sheep and cattle, which work she understood he enjoyed although there would have been some stress associated with it. Later he was promoted to the position of auctioneer and a further promotion to manager. These positions required almost daily contact with clients, often in hotels. Indeed a hotel located next door to his office in Kerang was frequently attended by her husband and clients. On occasions he would bring clients home at night where additional quantities of alcohol were consumed.
12. Mrs Davies acknowledged that her husband described himself in a discharge medical form as a moderate drinker but said in reality, at discharge, he was drinking heavily and the quantities consumed gradually increased thereafter. In about 1970 he suffered a “physical and mental breakdown”, was referred to specialists in Melbourne and was admitted to hospital for electro convulsive therapy. After approximately three weeks of therapy he returned to Kerang and whilst his alcohol consumption was initially reduced it returned to previous levels. Mr Davies was “demoted” and then worked as an assistant manager. She said he was depressed and attended a local general practitioner for vitamin injections. She thought that her husband felt that his position as an assistant manager was “degrading” and eventually he retired from work. Thereafter his alcohol consumption increased.
13. Mrs Davies said that her husband suffered an injury over his left eye when he slipped and fell whilst walking across “slippery moss” on a wharf at Thursday Island. She said her husband was working at the time and whilst she could not say what it was that he was then doing, he was not at leisure nor was he fishing (as was suggested in cross-examination). Whilst there was some discrepancy in the descriptions variously given as to whether the injury concerned his left eyebrow or left eyelid, she said the resultant scarring was noticeable although he did have thick eyebrows. She could not explain why the discharge medical record did not refer to the injury. Mrs Davies said that the scarring and the drooping of the eyebrow or eyelid was a disfigurement that did worry her husband from time to time and was the source of comment by others which distressed him. Indeed she said that as he became older and became more depressed the features of his left eye, particularly after he had consumed alcohol, seemed to be more pronounced and had a greater affect on him. She recalled occasions when he would return home after work and tell her of comments that had been made by others of the appearance of his left eye. However it did not prevent him from attending work and the comments seemed to be made by persons who were not work colleagues.
14. Mrs Davies said that she did not know what her husband’s duties were on Thursday Island. She said that he did not then play sports and when off duty his time was spent making jewellery from shells. She thought her husband was scared whilst on Thursday Island because of the prior bombing of it by the Japanese and thought that there had been, or was, a Japanese presence on Thursday Island because her husband returned to Kerang with Japanese coins. She thought that refuelling depots were at risk of being attacked and whilst she did not know of Australian fuel depots being bombed during the war, she said that Australian forces did target enemy fuel installations. She also learnt from Mr Hughes, a welfare officer with the RSL, that Japanese submarines had been attacked “up in the Islands” and it had been learnt that there had been other Japanese “up around the Islands at that time”. When asked to distinguish between what she had learnt from Mr Hughes and what she had been told by her husband, she said (transcript, page 51):
Bill [her husband] used to say it was a well known fact that if they bombed - bombed the refuelling depots they would be - they would be crippled there. They - they would have no refuelling for their - their vehicles, ships, whatever.
15. In an earlier claim form Mrs Davies said that her husband had been bored during service particularly when he was “drafted from depot to depot”. The forms said that his boredom was also, in her belief, associated with being away from home. Mrs Davies did not think that her husband would have been bored initially upon enlistment at Point Lonsdale where he was stationed for three months. She thought that her husband would have been bored on Thursday Island but acknowledged that she could not be sure whether he was bored when he was also stationed (prior to Thursday Island) at Cerberus. She agreed that she had assumed that her husband was bored on Thursday Island and by reason of the boredom he consumed alcohol.
16. In concluding the cross-examination, Mrs Davies agreed with suggestions put to her that she did not know what quantities of alcohol her husband was consuming at the time of discharge nor did she know his drinking habits or the quantities that he consumed during service on Thursday Island. She did not know when he had his first drink but said that it did occur after he enlisted in the Navy because he had told her that he had “learned to drink and smoke when he joined the Navy” (transcript, page 58). She said that when she started to keep company with him, he drank heavily and her estimate of her husband drinking four or five bottles of beer per day, occurred during the 1950’s.
17. Mrs Davies said prior to enlistment her husband was a “happy young man” and who after service had no reason in her view to be depressed because they had two healthy children and owned their own home.
bruce peter hughes
18. Mr Hughes is a Member of the RSL and Legacy who assists veterans and widows in claims for pensions and benefits. He has been assisting Mrs Davies in this application.
19. Mr Hughes is formerly a member of the Navy and part of his service was on HMAS Magnetic which is a naval base at Townsville. He said the refuelling depot at Thursday Island was HMAS Carpentaria which was an installation where persons were reluctant to serve because refuelling installations were regarded as being targets for enemy activity.
20. In evidence, and in a statement tendered in these proceedings, Mr Hughes said that alcohol was freely available on Thursday Island. He said he learnt of this from a tour guide during a private visit he made to Horn Island in the 1990’s. He said he learnt that there was a hotel located near a wharf on Thursday Island which service persons would pass on their way to and on their way from duty. He said that because of the presence of the hotel, beer and spirits would have been available. Mr Hughes said that he could not be sure whether a canteen for naval personnel was located on Thursday Island but said that canteens were located in other naval installations.
21. Mr Hughes said that Mrs Davies had told him that her late husband was scared on Thursday Island because it was a refuelling depot. He said she had also told him that her husband was distressed when he learnt that his parents had separated and was unable to obtain leave to return to Kerang. Mr Hughes said that he would have expected Mr Davies to be scared on Thursday Island because it was a refuelling depot and “there is a great deal of stress because you are really on your own, there was no one around. I think there was the army with two little Bofor guns, that is the only bit of protection they had and that was over the other side of the island” (transcript, page 73).
22. In cross-examination, Mr Hughes agreed that he had never served on Thursday Island, he did not know Mr Davies, that he had never served on a naval refuelling depot and the tour guide from Horn Island (Ms Seekee) had never served on Thursday Island. He had no knowledge of the frequency of vessels that travelled to Horn Island for delivery of fuel or for refuelling. Additionally, Mr Hughes said that he had not ever spoken to any other member of the Navy who knew of, or served with, Mr Davies.
23. Mr Hughes said that when he learnt from the death certificate that Mr Davies had suffered from cirrhosis of the liver, he discussed the potential claim with Mrs Davies and enquired whether her husband did consume alcohol. He also made enquiries whether her husband had complained of boredom on Thursday Island during service. He agreed that he had asked Mrs Davies whether her husband had ever expressed any feelings of apprehension because he had believed there was inadequate protection on the Island.
24. Mr Hughes agreed that he had told Dr Cole on behalf of Mrs Davies that he held the belief of the presence of enemy submarines in the vicinity of Thursday Island, but qualified that statement in his evidence when he said “there could have been” (transcript, page 79). He agreed that he had told Dr Cole of the presence of submarine “alerts” at Balikapan in August 1945. He agreed that Balikapan was at Borneo, and it was “no where near Thursday Island” but said “it is in that Northern area. It is on a parallel, of course”. Mr Hughes agreed that he had no knowledge of Japanese sea or air power during the time that Mr Davies served on Thursday Island and said that he had assumed that personnel at refuelling depots would be “on edge”, whilst also acknowledging that he had not ever worked as a crew member of an oil or refuelling depot.
25. Mr Hughes agreed that Horn Island, which was located close to Thursday Island, did have a machine gun battalion and an infantry battalion present during WWII. He agreed that he did not pass that information to Dr Cole because he had told him only of the presence of troops on Thursday Island.
26. Mr Hughes agreed that he suggested to Mrs Davies that the scarring over the deceased’s left eye and his reaction to it constituted a “social phobia”. He also agreed that he suggested to her that her husband suffered “separation anxiety disorder” which he attributed to the knowledge that he had learnt of Mr Davies drinking alcohol at home, his irritability, his poor relationship with his daughters and his reaction to ceasing employment.
edward cole
27. Dr Cole is a medico-legal psychiatrist who was engaged by the applicant’s solicitors to provide an opinion on 28 November 2002. The report followed a consultation with Mrs Davies and an interview with Mr Hughes. Later, Mr Hughes also forwarded a letter to Dr Cole which purports to record some air and sea battles “to the East, North and West of Thursday Island” during the time the late Mr Davies served.
28. Dr Cole regarded Mrs Davies as a good historian who told him that her husband had told her that at the end of each day on Thursday Island he would drink with his colleagues and on occasions he would drink to excess and become drunk. She said that he had told her that he was apprehensive because of fear of being shelled or blown up. She told Dr Cole that her husband drank to excess after discharge until his death. She also gave a history of her husband consuming alcohol before and during working hours, of being self-conscious of the appearance of his left eyebrow or eyelid and later being admitted to Coonil Private Psychiatric Hospital in Melbourne for ECT treatment.
29. Dr Cole concluded that upon the history that he had obtained the deceased suffered from alcohol dependence or abuse and generalised anxiety disorder.
30. In cross-examination, Dr Cole acknowledged that Mrs Davies had told him that she knew her husband prior to his enlistment. She said that both her family and his family had respectively moved off farms into the Kerang township and they lived near each other. They had common social interests. She was at school whilst he was working, having left school at a relatively young age. She told Dr Cole that no one else in her husband’s family “had a drinking problem”. Dr Cole was aware that her husband’s parents had separated whilst Mr Davies was serving at Thursday Island but he did not question her as to whether that had an effect upon him.
31. Dr Cole acknowledged that there appeared to be nothing unusual about young men having a drink with each other at the end of each day nor becoming drunk from time to time, particularly if they were under stress. He said that he had been informed by Mr Hughes that enemy submarines were in the vicinity of Thursday Island and that the late Mr Davies was afraid of being shelled or blown up. He said that Mrs Davies had given him a history of her husband being apprehensive and commencing to drink alcohol and smoke cigarettes after enlistment. However, the period of time between enlistment and the commencement of an alcohol and cigarette habit was not known. Dr Cole said that Mrs Davies had also told him that her husband was a heavy drinker at his discharge.
32. Dr Cole said that upon the description given to him by Mrs Davies it would appear that her husband had been self-conscious about the appearance of his left eyelid or eyebrow. Dr Cole said she described her husband as suffering from a “social phobia” and whilst he could not exclude that phenomenon, he was not prepared to diagnose it. He acknowledged that Mr Davies did drink alcohol to excess, did appear to be ill at ease with other people and on occasions found it necessary to light a cigarette or have a drink before he would answer a telephone but said he would need more information concerning the deceased’s behaviour before any definite diagnosis could be made.
33. Dr Cole acknowledged that the deceased did have ECT treatment in about 1970 which he thought would be associated with depression because that type of treatment was not usually prescribed for persons who suffered from anxiety only.
34. Dr Cole acknowledged that the deceased had on occasions exclaimed during his sleep “mind out their coming” which was thought to have an association with a sense of fear or threat. However, Dr Cole said that there was never any complaint made by the deceased of nightmares and the persons described as “they” was not known. The suggestion put to him by the respondent’s counsel that it may be referrable to an encounter with livestock during work was discounted.
35. Dr Cole said that he had from time to time bought livestock and was familiar with the practices of auctioneers and stock merchants. He said it was not uncommon for persons in that profession to drink alcohol with their clients and thought in the small town of Kerang that activity would not be unusual. Dr Cole also noted that the hotel located next door to the deceased’s office was locally known as “Bill’s Bar”. Dr Cole was aware of the cessation of the deceased’s employment. He said if it had been preceded by demotion to assistant manager level it may have been a further insult to his self-image and add to his anxieties.
36. Dr Cole said he placed “considerable weight” on the evidence of Mr Hughes in reaching his opinions. When he was informed that the “submarine alerts” were, at relevant times, near Borneo and a belief by Mr Hughes that crew members at oil depots were always on edge, he said that Mr Hughes was reporting “common knowledge or rumour at the time that this is presumably – what people believed whether it had a factual basis or not”. When he was reminded that these opinions were not given by any person who served on Thursday Island, Dr Cole said “if beliefs like that were widely held, people would have a sense of being threatened” (Transcript. Page 103 – 104).
37. Dr Cole said that if he excluded the evidence of Mr Hughes, he thought he could confidently diagnose the deceased as suffering from a chronic anxiety disorder and from alcohol dependence but he did not have a sufficiency of information to confidently state that those conditions were related to the deceased’s naval service (Transcript, page 105).
38. Discussion then followed between Dr Cole, respondent’s counsel and me concerning the recorded causes of death. On balance, Dr Cole said that the “immediate cause of death was the coma which in turn resulted from cirrhosis of the liver which in turn was the result of the chronic alcoholism” (transcript, page 106). Later, Dr Cole said that the sequence of events was cause and effect in type, that is, he agreed with the proposition put to him “that you start with the alcoholism. Maybe not everybody gets cirrhosis of the liver from drinking alcohol but in this case he was a chronic alcoholic and that caused his cirrhosis which lead to the hepatic coma and life being extinct . . .” (transcript, page 107).
lester walton
39. Dr Walton is a consultant psychiatrist who was engaged by the respondent to provide an opinion which he did in a report of 21 November 2005. He did not interview Mrs Davies but relied on documented information provided to him by the respondent’s solicitors.
40. Dr Walton had been informed of the certified causes of death and it was his opinion that the late Mr Davies died following entering into a hepatic coma which followed cirrhosis of the liver which had its origin in excessive alcohol consumption. It was his opinion that there would need to have been excessive alcohol consumption for about ten years before cirrhosis of the liver could be detected and a further five or ten years before there would be damage of such a level as to cause death following hepatic coma. Dr Walton said that excessive consumption of alcohol was the prime cause of cirrhosis of the liver. Technically Dr Walton said that the coma would not of itself cause death. When pressed on this issue during cross-examination Dr Walton said that “the cause of death ultimately was the disordered blood chemistry, he was poisoned, it was a toxic situation because his liver wasn’t working properly due to the cirrhosis, due to the alcohol consumption”. The cirrhosis was the precipitating cause of death because “it was the cause of the failure to process the body’s chemicals properly leading to a toxic situation” (transcript, pages 142 to 143).
41. Dr Walton acknowledged that he was limited by the inability to obtain a history from Mr Davies but said it appeared to him that in his lifetime an anxiety condition would have been suffered, however he could not express an opinion as to the date of onset. He also thought that the late Mr Davies suffered a depressive disorder but that seemed to exist around the time that he had the ECT treatment in the early 1970’s. Dr Walton acknowledged that ECT treatment can cause memory loss but it was more than likely to have been of short duration. He thought it was more likely that any failure of memory would be associated with the deceased’s consumption of alcohol. He thought Mr Davies also suffered from alcohol abuse but did not think there was any association between it and his reaction to the disfigurement of the left eye. He acknowledged that it might be thought that the deceased “self medicated” because of self-consciousness and anxiety associated with the scarring, but on balance Dr Walton thought that consumption of alcohol in those circumstances would be more likely to occur “in an isolated fashion – probably alone at home. I wouldn’t be venturing out to hotels or RSL or anything like that to drink. Because if the fundamental problem was one of social anxiety because of disfigurement you would think that there would be avoidance behaviour. You would keep it to yourself” (transcript, page 126). Dr Walton also thought that it was unlikely that the deceased suffered from post-traumatic stress disorder. Whilst he could not exclude that diagnosis, he said that there was not enough information to permit him to diagnose it on the balance of probabilities.
42. Whilst Dr Walton did express opinions as to diagnosis he said that he could make no finding of connection between any of the conditions and military service. He said that if it was found that the deceased did not consume alcohol prior to service, but was consuming alcohol subsequently, at its highest a finding could only be made that alcohol consumption commenced within his period of service. He acknowledged that there was evidence of Mr Davies’ mother referring to him as a “different boy” upon his discharge but it was not possible to connect that observation to the deceased being a person who consumed alcohol and which would permit a finding of it having a connection by service.
43. That issue was the subject of emphasis in cross-examination because Dr Walton said that upon the evidence as he understood it of Mrs Davies, (that her husband returned from service as a heavy drinker) there may be a conclusion that there was some connection to service. However, Dr Walton qualified that answer when he said that he did not know of a specific event or circumstance which would permit a finding of connection between an alcohol habit and service. He said he understood the relevant factors in the applicable statement of principles (SOPs) but could not find that there was a severity of stressful events, however defined, that would permit him to conclude that the conditions he referred to earlier were related to service. He agreed that persons during service might consume alcohol or smoke cigarettes as a means of being occupied or to relieve boredom but as he understood the SOPs, they were not necessarily satisfied. Additionally, the same might be said of other phenomena such as consuming or commencing to consume alcohol by reason of peer pressure or the availability of alcohol at a discounted price.
44. Again to re-emphasise the difficulty he said existed in the absence of the deceased in making any findings as to connection between service and illness, Dr Walton said that the definition (for example) of a severe psychosocial stressor as existing in the SOP for anxiety disorder was impossible to be satisfied because there was an absence of evidence, as far as he knew, of any “identifiable occurrence that evokes feelings of substantial distress”. That is to say, he did not know of any “qualifying event” nor did he know of any “subjective response” (transcript, page 148).
john malcom mccarthy
45. Professor McCarthy is a visiting fellow of the University of New South Wales at the Australian Defence Force Academy. He was engaged by the respondent as a consultant historian and provided two reports of 17 November 2002 and 3 February 2003. Professor McCarthy was not a member of the Australian Navy and he had not ever travelled to Thursday Island except on one occasion when he visited it for one day in the course of civilian employment. Most of his evidence of the circumstances of service on Thursday Island in or around 1945 was based on assumption namely; that the veteran would have been bored, that leisure activity may have involved “pearl fishing” and if his civilian skills as a clerk were exploited by the Navy it is likely that his work on Thursday Island would have involved record keeping, preparation of reports, movement reports of personnel and the arrival of vessels.
46. Professor McCarthy said that knowledge of the absence of threat could have been learnt by radio and he would have expected that the Commanding Officer would have known of the absence of enemy activity and or the reduction of Japanese presence. He would have anticipated that the Commanding Officer would pass that information on to personnel at Thursday Island. However, this could not be confirmed by the absence of Standing Orders, which would have recorded any such communications. (Professor McCarthy said he had not been asked to locate relevant Standing Orders and make enquiries of this type). (He did acknowledge, in his report of 3 February 2003, that at the time of being posted to Thursday Island, Mr Davies would not have been aware that the danger of attack was limited and would not then know the Japanese would surrender in August 1945).
47. Professor McCarthy did confirm that prior to 1945, Thursday Island had been reinforced against the potential of Japanese attack and there had been a “reasonably heavy flow of naval vessels”. By 1944 and 1945 there was a reduction in vessel traffic in the vicinity because of the reduction in the threat from Japanese activity. Additionally, he said that naval personnel had been removed from areas of low threat because of the absence of civilian employees and by reason of a “manpower shortage in Australia”.
48. Professor McCarthy acknowledged that Thursday Island would have been reinforced particularly after the bombing of Darwin because it would have been viewed by Japanese forces as a place of strategic interest. However, he said that subsequent naval battles in the Coral Sea and Midway repelled Japanese intrusion and after 1943 the risk of invasion or attack was minimal.
49. Professor McCarthy said that it was standard practice in naval establishments to have a canteen available for personnel where cigarettes and alcohol would have been available. However, he said that beer was in short supply in Queensland in the 1940’s because of the absence of glass. He said beer would have been rationed at between 1 and 2 bottles per person per week but acknowledged that persons who did not drink alcohol could have “traded” their ration card. He said he was aware that there were hotels on the island but in the absence of specific enquiry, he thought that similar difficulties would have been encountered in obtaining packaged bottled beer. Whilst draught beer may have been available he thought there would have been difficulties in having it transported to Thursday Island.
submissions
50. Mr De Marchi on behalf of the applicant submitted that the cause of death was cirrhosis of the liver which attracted examination of the provisions of Instrument No 36 of 1998 which concerned that condition. It was submitted that factor 5 (a) of that Instrument was satisfied because a finding should be made that the deceased did consume at least 220kgs of alcohol within any 10 year period before the clinical onset of the cirrhosis. Additionally it was submitted that Doctors Cole and Walton and Mrs Davies were all of the opinion that the deceased would have consumed that quantity of alcohol at the relevant time.
51. It was submitted that a finding should be made on the evidence that prior to enlistment the deceased did not consume alcohol nor did other members of his family. It was submitted that the deceased took up drinking alcohol in service by reason of peer pressure and the stress of service largely associated with him being posted to a refuelling facility which was regarded as being a target for the enemy. Additionally it was submitted that a canteen and a hotel existed on Thursday Island where alcohol was plentiful and cheap and was consumed to relieve boredom. It was submitted that by reason of the deceased being 19 years at the time he was transferred to Thursday Island he would have been vulnerable and by reason of the above features associated with service, the death from cirrhosis of the liver, having its association with alcohol consumption, permitted a finding that death was attributable to the late Mr Davies’ eligible war service.
52. Additionally it was contended that by reason of the combined provisions of section 120 (6) of the Act (an absence of onus), s 119 (taking account of difficulties ascertained with the existence of any fact, matter, cause or circumstance, including the passage of time and availability of witnesses) and a beneficial approach to interpreting and applying the Act, a finding should be made in favour of Mrs Davies.
53. Mr De Marchi contended that in the application of s 120B of the Act (and the consequent application of s 120 (4)) any examination of the material raising a connection between service and death “is akin to a reasonable hypothesis in order to meet that connection. The Tribunal we would submit is entitled to look at the material and say “is there material that in this case points to the applicant not being a drinker”.” It was submitted that there was material which pointed to a connection existing between the commencement of an alcohol habit and service and the ultimate consumption of a quantity of alcohol, which satisfied factor 5 (b) in the SOPs applicable to this review.
54. In anticipation that the respondent would argue that the cause of death was alcohol dependence or abuse, it was submitted that the cause of death was cirrhosis of the liver by its association with the abuse and dependence upon alcohol by the late Mr Davies. That is to say his demise was caused by the cirrhosis not by the alcohol consumption.
55. Mr De Marchi relied upon the minority judgement of Heerey J in Roncevich v Repatriation Commission [2003] FCAFC 146. It was submitted that the High Court subsequently on appeal (Roncevich v Repatriation Commission [2005] HCA 40) “agreed” with the decision of His Honour. Reliance was also made upon the other authorities referred to in His Honour’s judgement namely; Repatriation Commission v Law (1981) 147 CLR 635; Repatriation Commission v Tuite (1993) 39 FCR 540 and Goward v The Commonwealth (1957) 97 CLR 355. The combined effect of those decisions was submitted as permitting a finding in these proceedings that whilst the commencement of an alcohol habit by the late Mr Davies appeared to be one of personal choice, it did commence during his service, that the cause of commencing that habit need not be the sole or dominant cause but attribution by service can be found amongst a number of causes and so long as service was a contributing cause a finding should be made on the balance of probabilities that a connection did exist between service and the subsequent alcohol habit.
56. Ms Macdonnell on behalf of the respondent submitted, by reference to the evidence of Doctors Walton, Cole and the reports of Dr Chetty, Dr D’Souza and the Kerang Hospital nursing notes that a finding should be made of death by alcohol abuse or dependence. Accordingly it followed that the liability of the respondent should be determined by reference to Instrument No. 77 of 1998 and factor 5 (a). Whilst she acknowledged that the death certificate recorded two other causes of death it was submitted that they (hepatic coma and cirrhosis of the liver) were each a sequel of the chronic alcoholism suffered by the deceased. It was submitted that by reference to the Federal Court decision of Repatriation Commission v Hancock [2003] FCA 711 (“Hancock”) a finding should be made that the “kind of death” was alcohol dependence or abuse.
57. Ms Macdonnell pointed to the language of factor 5 (a) namely; “suffering from psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse” and submitted that the issue of “clinical onset” became critical. She submitted that on the basis of the Full Federal Court decision of Lees v Repatriation Commission [2002] FCAFC 398 a finding of “a psychiatric disorder” must be made at the time of the clinical onset of alcohol dependence or alcohol abuse. It was submitted that the deceased should be perceived as functioning well until at least 1970 when he was treated for depression. It was suggested that his promotion subsequent to discharge from a position as a clerk to a stock agent to an auctioneer and then an office manager was consistent with a person who did suffer good emotional health. It followed, on her submissions, that a finding could not be made of the deceased suffering from a psychiatric disorder, if at all, before 1970. It was also submitted that the symptoms of alcohol abuse as found within Instrument No. 77 of 1998 were not present in the deceased, namely the presence of cognitive, behavioural or physiological symptoms associated with alcohol abuse or symptoms or signs of a maladaptive pattern of alcohol abuse leading to clinically significant impairment or distress. She submitted that the deceased’s work history pointed to the absence of the above symptoms or signs.
58. By reason of the definition of “psychiatric disorder” within the alcohol instrument (being an Axis I or II disorder) it was submitted that the deceased, if he was depressed or suffered generalised anxiety disorder, would not in any event have satisfied applicable Instruments with respect of those conditions. Comfort for this submission was sought from the evidence of Dr Walton who said that it was not possible to pinpoint any date or occasion of the deceased manifesting symptoms of anxiety or depression. Further to this Ms Macdonnell pointed to the evidence of Dr Cole who obtained a history from Mrs Davies of her husband not having difficulty concentrating or having impairment of memory. It followed on the above analysis that even if the deceased did have an anxiety disorder at the time of the clinical onset of alcohol abuse it could not on the balance of probabilities have been related to his service. Therefore, because it is not possible to make a finding of the date of the clinical onset of anxiety disorder, it is equally impossible to make any findings on the balance of probabilities of the deceased suffering a “severe psychosocial stressor” as defined by the SOP with respect to anxiety disorder.
59. Additionally, it was submitted that there were a number of events affecting the late Mr Davies that may have been responsible for his alcohol habit (if it was found that he was consuming alcohol at least at the conclusion of his service) namely the separation of his parents, his inability to return home, the reliance upon him by his mother and one of his brothers being unsettled. These events were advanced as having no relationship with service. Additionally it was submitted that Mrs Davies said in evidence to both the VRB and this Tribunal that her husband “did not recount any incidents or happenings during the war that stood out”. It therefore followed on these submissions that the applicant could not satisfy the SOP with respect to alcohol dependence or abuse.
60. In his reply, Mr De Marchi, with the benefit of transcript, sought to advance the applicant’s case but more so by criticism of the case advanced on behalf of the respondent. Additionally he was critical of the failure of the respondent to acknowledge or accept the evidence of Mrs Davies with respect to her knowledge of her late husband prior to enlistment. It was submitted that as a fact it should be found that the late Mr Davies did not consume alcohol prior to service. Additionally it should be found upon the submissions in reply that the late Mr Davies returned from Thursday Island as a person who heavily consumed alcohol although the comment in the written reply (paragraph 9) that “the evidence of the applicant in relation to drinking on Thursday Island was fairly direct” is obscure.
61. It was submitted that the late Mr Davies did communicate to his wife that he was in fear of the Japanese and feared the refuelling depot on Thursday Island was a target. Additionally upon the evidence of Mrs Davies it should be found as a fact that the late Mr Davies was bored and upon the evidence of Professor McCarthy a wet canteen would have existed, that beer would have been available and persons who did not consume alcohol were likely to have disposed or traded their beer ration to those persons who did drink alcohol.
62. Mr De Marchi reaffirmed his earlier submissions that the cause of death should be found to be cirrhosis of the liver and a finding should also be made that the requisite quantities of alcohol pursuant to that SOP should be found to have been consumed.
conclusion and reasons for decision
63. Widows who bring proceedings often are severely disadvantaged, no less in this application. It is not unusual to learn that veterans did not or were reluctant to speak about the circumstances of their service to their wives. By the passage of time, former comrades have either died or cannot be located. Applications proceed on the basis of secondary information and the case advanced is often constructed on the basis of assumption or reasonable innuendo.
64. Of course the absence of the veteran himself is a significant disadvantage. The circumstances of service giving rise to injury as alleged will not be known particularly where the veteran has not discussed the circumstances with other persons, including medical practitioners who may have treated. In cases involving death having an association with consumption of alcohol which is said to have its origin in anxiety or fear or a sense of threat, the basis of those feelings might never be known. The quantities and frequency of alcohol consumed, if it had its genesis in service will remain uncertain. If the case is advanced that alcohol consumption had a connection to boredom or peer pressure or the absence from family members it might never be proved when evidence is unable to be obtained concerning the circumstances of service, whether there in fact there was boredom, whether there were peers of the veteran and if so the extent of any influence.
65. This application has all of the above features and consequently all of the above deficiencies in evidence.
66. When all of the above is added to the need for the widow to prove her case on the balance of probabilities, to be cross-examined about events which occurred more than 60 years earlier and having to disclose and explain, sometimes with some intimacy, features and events within the marriage relationship the task faced by widows is not just daunting but succeeding is very difficult.
67. Not infrequently, veterans do not discuss the circumstances of service with their spouses. A feature of this review was a focus on the service at Thursday Island but nothing was considered about service earlier at Cerberus and Lonsdale. For reasons which will appear later, I am satisfied that drinking commenced after enlistment, but before commencing service on Thursday Island.
kind of death
68. In claims made by widows after 1 June 1994 where the late veteran was engaged in eligible service the Tribunal on review must be reasonably satisfied that the death of the veteran was war-caused only if the material raises a connection between the death and the particular service and there is in force a SOP upholding the contention that the death is on the balance of probabilities connected with the service. (Refer s 120 (4) and s 120B of the Act).
69. The expression “kind of death” is to be found at s 120B (4) and is a reference to the “cause” of death. Until the cause of death is established an applicable SOP cannot be identified.
70. The expression “kind of death” was the subject of discussion in the Federal Court decision of Hancock and later in another Federal Court decision of Repatriation Commission v Towns [2003] FCA 1262 (“Towns”). Whilst both of those applications involved the more relaxed standard of proof namely; reasonable hypothesis, the preliminary issue of finding the kind of death on the balance of probabilities was the subject of much analysis as it was in these proceedings.
71. The death certificate certified the cause of death as hepatic coma; cirrhosis of the liver and chronic alcoholism. The duration of each of those three conditions was not recorded.
72. Mr De Marchi, on behalf of Mrs Davies, contended that the cause of death was cirrhosis of the liver which permitted examination of factor 5 (a) of Instrument No 36 of 1998 entitled “Cirrhosis of the Liver”. Ms Macdonnell on behalf of the respondent submitted that the cause of death was alcohol abuse which attracted an examination of Instrument No 77 of 1998 entitled “Psychoactive Substance Abuse or Dependence”. In the alternative she submitted that the kind of death was by cirrhosis of the liver.
73. In this application the one thing that could be stated with some certainty is that the deceased in his lifetime did consume considerable quantities of alcohol. Despite the submissions of Ms Macdonnell, I am not satisfied that the kind of death was by alcohol abuse. On the evidence heard from Doctors Walton and Cole, and upon the evidence read in the T‑documents and upon review of the Transcript, I am satisfied on the probabilities and find as a fact that the kind of death was cirrhosis of the liver.
74. Alcohol abuse certainly was the pre-cursor to cirrhosis of the liver but of itself it was not the “kind of death”. Death was by cirrhosis of the liver.
75. Dr Cole did agree in cross-examination with a report written by Dr Chetty, the treating general practitioner, that the demise of Mr Davies was due to chronic alcoholism but when pressed on this issue and the relevance of the connection between the alcohol consumption and the cirrhosis of the liver, Dr Cole said “the immediate cause of death was the coma which in turn resulted from cirrhosis of the liver which in turn was the result of the chronic alcoholism” (Transcript, page 106). When he was specifically asked to give his opinion on whether the cause of death was from the coma, the cirrhosis or the alcohol, Dr Cole said “if he hadn’t been a chronic heavy drinker there is no reason to think he would have suffered from cirrhosis of the liver or hepatic coma”. Dr Cole agreed that the reference in his evidence and the evidence of others to a sequelae was a reference to connection best exemplified by his agreement with the proposition put to him by Ms Macdonnell being “so it is causal in that sense. That you start with the alcoholism. Maybe not everybody gets cirrhosis of the liver from drinking alcohol but in this case he was a chronic alcoholic and that caused his cirrhosis which led to the hepatic coma and life being extinct when he stopped breathing”. In re-examination, Dr Cole said in response to a question put to him by Mr De Marchi “I think cirrhosis of the liver was the cause of death” (Transcript, page 107).
76. Dr Walton expressed similar opinions to Dr Cole. He acknowledged that Dr Chetty had recorded chronic alcoholism as the first of the three conditions recorded in the death certificate in a report of 15 March 2001 (T‑documents, page 39 and 40). However, it was his opinion that “historically” chronic alcoholism was followed by cirrhosis which was followed by the hepatic coma. It was his opinion that the history of excessive alcohol consumption by the late Mr Davies caused the cirrhosis of the liver which ultimately caused the liver to function improperly and precipitate the coma (Transcript, pages 122 and 123).
77. I am satisfied that the opinions expressed by Doctors Cole and Walton are sound. I am satisfied that alcohol consumption of itself will not cause death and of itself did not cause the death of the late Mr Davies. It is more likely to be responsible for causing damage or the inability of other organs to function properly, as in the present case, which ultimately precipitates death. I think a similar analogy can be drawn between persons who smoke cigarettes and who ultimately die. Smoking of cigarettes alone will not cause death but rather they are more likely to cause fatal consequences of either lung cancer or respiratory illnesses or cardio-vascular disease. It is one or a combination of those conditions which cause death, not smoking cigarettes.
pre-enlistment
78. There was extensive examination of Mrs Davies as to whether her husband did consume alcohol prior to enlistment. Having heard her evidence in these proceedings and in the former proceedings I am satisfied and find as a fact that the late Mr Davies did not consume alcohol prior to enlistment.
79. Mrs Davies said that she knew her husband prior to enlistment. They were both residents of Kerang, being a small country town in North Western Victoria. They both lived near each other and she saw him frequently by an association they both had with the local church and activities associated with the church. She also came in contact with him at a local picture theatre and at a dance hall. Additionally she was aware that his family did not drink alcohol and he would not have been exposed to it in the family environment. By reason of his age he would not have been able to purchase it.
80. I am satisfied that by reason of the frequency of the contact between Mrs Davies and her late husband prior to enlistment, that had he been consuming alcohol she would know of it. Whilst there is much to be said for living in a rural community, a feature of such an environment is the inability to enjoy a degree of privacy and anonymity. If Mr Davies was consuming alcohol, by reason of his age, and his membership of a group of adolescents connected to a church, it is more than likely that it would have been known by others and would have been the subject of gossip. Mrs Davies was resolute in her evidence denying his consumption of alcohol prior to enlistment and on balance I am satisfied as a fact that alcohol was not consumed by him prior to service.
enlistment
81. I am satisfied that during the period of the deceased’s enlistment he did commence to consume alcohol and was consuming it at his discharge from service. However it is not possible to make any findings on the balance of probabilities that alcohol consumption commenced on Thursday Island. Prior to his transfer to Thursday Island, Mr Davies had served at HMAS Cerberus and HMAS Lonsdale in Victoria. He may have commenced to consume alcohol during those periods of service. He may not have consumed alcohol during those periods of service. This will never be known.
82. It was submitted in evidence that the late Mr Davies was subject to peer pressure and took up consuming alcohol by reason of it. This may be so but no finding can be made as to whether he was exposed to any peer pressure, whether he responded or succumbed to it and if he did at what location. Nothing is known about his service at Cerberus or Lonsdale and little knowledge exists of his service at Thursday Island. It is of course likely that other naval personnel would have been stationed there during the period of his service but the numbers of persons and their influence if any, is unknown. I also note that Mrs Davies in a statement appended to her initial application (T‑documents, pages 19 – 21) recorded “He said shortly after joining the navy that his new cobbers had started smoking and drinking alcohol in moderation . . .”. That comment does not distinguish between service at Cerberus, Lonsdale or Thursday Island.
83. It was also suggested by these proceedings that the deceased took up alcohol by reason of boredom. Mrs Davies thought that he made jewellery from shells as a leisure activity on Thursday Island. Professor McCarthy thought that he may have undertaken pearl fishing. Whether those activities were intended to counter boredom or indeed whether the deceased was bored at all remains speculative although Mrs Davies did say in her Statement (refer above) that time was spent “In the canteen . . . to counter boredom” but again the location of being bored and the location of “the canteen” is unclear. On the evidence of Professor McCarthy the provision of packaged beer in the canteen (on Thursday Island) should be regarded as either being doubtful or limited. It was his evidence that packaged beer was in very short supply. That was said to be associated with the shortages in glass bottles (Transcript, page 163). Additionally beer was rationed from November 1945 at two bottles per person per week. Beer supplies in tin cans did not become available until the 1950’s, on his evidence. Additionally, it was his evidence that hotels on Thursday Island would have dispensed draught beer but probably would have encountered difficulties in the supply of kegs or barrels. However, Professor McCarthy did agree that it was common practice for persons who did not consume alcohol to trade or sell their ration dockets to those that did consume alcohol.
84. The circumstance of service which was given increasing significance in this claim was the belief that the late Mr Davies had a perception or fear of attack from enemy forces. That perception or fear increased after the claim commenced because for reasons explained earlier, no mention was made at all by Mrs Davies in the statement attached to her primary claim of the fears alleged by the late Mr Davies.
85. The period of service on Thursday Island however must be put in context. He enlisted on 5 September 1944 and was discharged on 27 August 1946. His service on Thursday Island was between 7 March 1945 and 15 April 1946. The Japanese surrendered in August 1945. From the reports prepared by Professor McCarthy the last occasion where Japanese forces were approximate to Thursday Island was 18 March 1942 when aircraft circled the Island. Horn Island was attacked on occasions the last being June 1943. Between March 1945 and the surrender in August 1945, Japanese forces were located at or around North East New Guinea and Balikapan. There is no evidence of the presence of Japanese forces on the ground at or near Thursday Island nor evidence of Japanese sea forces at or around Thursday Island during the period of time that Mr Davies served nor indeed for many years earlier. The fear said by Mrs Davies to have been expressed by her husband therefore is somewhat of a mystery.
86. Professor McCarthy said in evidence and recorded in his report that whilst the danger from enemy forces was very limited it was unlikely that the veteran knew that the Japanese forces had moved North away from the Pacific towards New Guinea and Balikapan. However, he did not discount the possibility that Mr Davies would have learnt by radio of Japanese activity to the far North of Thursday Island and may have been notified by his Commanding Officer of the reduction in risk. However, this could not be confirmed by the absence of enquiry or inspection of Standing Orders which would have contained reference to such communications. It was his opinion that the Commanding Officer would have been notified by superior headquarters of intelligence held concerning Japanese movement and he could think of no reason why the Commanding Officer would not have notified naval personnel on Thursday Island. He acknowledged that whilst some information would be censored on a “need to know” basis, he thought that it would be “general knowledge that the fighting was going – taking place a long way away from Thursday Island. And a good Commanding Officer would talk to his sailors and his troops once a week at least” (refer Transcript, page 165 – 172).
87. Even if it were accepted that there was limited information made available to Mr Davies of the withdrawal of Japanese forces around Thursday Island, and an absence also of knowledge of the last occasion of Japanese presence in March 1942, three years before he commenced service on Thursday Island, it is inconceivable, in my view, that Mr Davies would not have been aware that Thursday Island was regarded by military authorities as having a lesser risk than previously. It was said by these proceedings that part of the fear of Mr Davies was associated with his service upon a refuelling depot because it was thought that refuelling depots were regarded as targets for enemy activity. However prior to and during the time that Mr Davies served on Thursday Island there had been a reduction in a number of personnel and the defence of the Island was regarded as having a reduced priority than previously. There was also a lesser number of sea vessels servicing and being supplied at Thursday Island during the period of his service. Those features in my view are inconsistent with a location regarded by military authorities in Australia regarding Thursday Island as strategic significance to enemy forces.
88. Of course whatever might be said or interpreted about the knowledge of or communication to Mr Davies and others from his Commanding Officer it is in my view beyond doubt, that at August 1945 when the Japanese surrendered communication of that event would have been made. Surrender by enemy forces would have been the subject of considerable relief and celebration and I cannot conceive that the act of surrender would not then have been communicated. That must have had the effect of reassuring Mr Davies and others that the risk of attack or threat, if it had been held, was from that day eliminated. Accordingly, from August 1945 until his transfer elsewhere in April 1946, there can be no reasonable basis to conclude that alcohol was consumed, if at all, to relieve or lessen the effects of tension or anxiety associated with the fear of enemy attack.
89. Mrs Davies referred to her husband returning to Kerang with Japanese coins. It was her belief that this was a manifestation of Japanese ground troops having been on Thursday Island. There is no evidence of Japanese ever having ground troops on Thursday Island and certainly not during the period of time that Mr Davies was serving. More so Japanese ground troops, indeed Japanese forces altogether, had had no contact or association with Thursday Island for many years. From August 1945 there would have been no threat because of the Japanese surrender. I am unable to conclude that by Mr Davies bringing Japanese coins back to Kerang an assumption is permissible of Japanese persons having a contemporary or previous presence on Thursday Island.
90. Additionally, it was the evidence of Mrs Davies that her husband had exclaimed in his sleep from time to time the words “mind out their coming”. It was suggested those words constituted a sense by him of threat which had an association in service. I doubt that that conclusion can be reached on the balance of probabilities. Dr Cole noted that he was never given a history by Mrs Davies of any complaint by her husband of him having suffered nightmares and whilst he “reasonably” discounted the proposition put to him that it might have been associated with a fear by Mr Davies of an encounter with livestock in his employment, the words could be referrable to other circumstances in his lifetime.
91. Dr Chetty reported in March 2001 (T‑documents, page 40) that the conditions of alcohol consumption arose out of a neurosis and depression which he thought “were the results of his war service and the psychological trauma he suffered during that time”. Unfortunately he did not expand on that opinion, it would appear that he was not asked to expand on that opinion (because of the absence of any other report from him) and his notes of treatment had been destroyed (T‑documents, page 35). Whilst this again shows the difficulty faced by widows where records have been destroyed the notes of Dr Chetty, being a contemporaneous record of his treatment, might have disclosed a history of events as relayed to him by Mr Davies. Unfortunately by the absence of those notes that history, which is assumed to be the basis of the opinion expressed by Dr Chetty, will never be known.
92. In concluding this part of these reasons reference must be made to the involvement of Mr Hughes. I have no doubt that he is a person who is diligent and well intentioned but many of his beliefs and interpretations of the events at or around Thursday Island during the period of service of the late Mr Davies are either incorrect or misunderstood. His influence upon Dr Cole caused an opinion to be contained within his report of a connection between service and the consumption of alcohol. However in evidence, Dr Cole acknowledged that whilst he was prepared to make a diagnosis of chronic anxiety disorder and “perhaps” an alcohol or drug dependence, there was insufficient information to permit him to “confidently” state that those conditions were related to service (Transcript, page 105).
93. Mr Hughes was incorrect either in fact or in his understanding of the Pacific geography when information was passed by him to both Mrs Davies and Dr Cole concerning the presence of Japanese submarines. It appears that he failed to understand that Balikapan (for example) was many miles to the North of and nowhere near Thursday Island. His interpretation of the presence of two Bofor guns on Thursday Island, I think, led Mrs Davies to believe that the Island was incapable of defending itself when I think the reality was that troops had been withdrawn because the risk had abated and reinforcement could be provided, if thought necessary, from nearby Horn Island. It was his belief that persons who served on refuelling depots were at risk because those locations were regarded as enemy targets. However, Mr Hughes did not ever serve at a refuelling depot, he did not know Mr Davies or know anybody who knew him, he had never been to Thursday Island and had no personal knowledge of the state of Japanese sea, land or air forces at relevant times. It was he who learnt on a tour of Horn Island in the late 1990’s of the presence of a hotel near the a wharf on Thursday Island. This assumed proportions of importance which I think were unwarranted because it reinforced a belief that alcohol was available and was consumed by Mr Davies. There is no evidence that he ever frequented that hotel and on the evidence of Professor McCarthy the supply of alcohol to hotels or generally must have been dubious. It was he who suggested to Mrs Davies that her husband suffered a “social phobia” and a “separation anxiety disorder”. The extent of his influence upon her with respect to those phenomena became the subject of opinion and cross-examination of Doctors Cole and Walton.
94. I think that Mr Hughes has had an influence on Mrs Davies and over time it is difficult to separate her belief based on actual knowledge of communication with her husband as opposed to communication of the beliefs or assumptions of Mr Hughes.
post enlistment
95. For reasons given earlier I am satisfied that the late Mr Davies did commence to consume alcohol during service. For reasons also given earlier I cannot find as a fact that the consumption commenced on Thursday Island, indeed the statement of Mrs Davies appended to the primary claim records that “when he came home on leave I noticed he was smoking and occasionally went to the local hotel”. There was no evidence that the late Mr Davies did have leave which permitted him to return to Kerang after he was stationed on Thursday Island. For the purposes of these proceedings, having regard to the comment within the above statement, it would appear that alcohol consumption did commence before being transferred to Thursday Island. Of some significance, I think, is a reference in the statement of Mrs Davies to her asking her husband why he had started smoking and drinking. The answer, she said given by her husband, was “his new cobbers had started smoking and drinking alcohol in moderation” (T‑documents, page 19). Absent is any reference to fear or apprehension. The location of commencement is also absent but present is a reference to drinking “in moderation”. A similar reference is made later, in the same paragraph to the quantity consumed at discharge. I note that after his service concluded on Thursday Island, Mr Davies served (again) at Lonsdale and Cerberus (T‑documents, page 3). Whilst Mrs Davies referred in her statement to her husband attending a local hotel when on leave, it was in the context of her knowledge of him “shortly after joining the Navy” (refer paragraph 82 earlier). I therefore discount that the references in her statement to attending a local hotel was during a period of leave after service on Thursday Island had concluded.
96. Mrs Davies did say in her evidence that she was unable to comment upon him when he came back, on leave, because she did not know what he then did (Transcript, page 15). This evidence is inconsistent with the contents of the Statement (refer above). No criticism is intended of Mrs Davies. With the passage of time, almost 60 years, accurate recollection will be virtually impossible. Mrs Davies also said in evidence that he was a “heavy smoker and a drinker when he came back” (Transcript, page 16) which was a reference to his return to Kerang after discharge in 1946. The transcript, at page 16 also reads Mrs Davies’ opinion that her husband was then a heavy drinker, but that does not assist identifying where he commenced to drink.
97. It is known that shortly after arriving back in Kerang Mr Davies obtained employment with a stock and station agent and was initially transferred to an office in Quambatook being approximately half an hour away from Kerang. He was then away from his family which may have had some significance because there was evidence of him being upset whilst at Thursday Island after learning of the separation of his parents and his wish to return to Kerang. Mrs Davies said she did not see much of him during the period of time that he worked in Quambatook, although from time to time he would return to Kerang mid-week for stock sales. This is consistent with her having limited knowledge of the quantities of alcohol then being consumed because although discharged in 1946, their courtship did not commence until 1947.
98. Later Mr Davies returned to Kerang to work on a full time basis and worked in the stock and station industry which, from the evidence heard, frequently involves drinking with clients during the day and after work. On occasions clients were entertained at the Davies’ home where alcohol was also consumed. The industry was regarded as exposing its employees to stress, no less Mr Davies, who was observed on occasions to have to light a cigarette before he took a phone call, such was the measure of the stress that he apparently endured in the industry. The frequency of his consumption of alcohol was apparently not helped by his office being located next door to a hotel. Indeed, there was evidence from Dr Cole that Mrs Davies had told him that a bar within the hotel was known as “Bill’s Bar” apparently a reference to the frequency of attendance by her late husband. (Mrs Davies also gave similar evidence to the VRB – transcript at page 10).
99. If alcohol was consumed by Mr Davies as a relaxant it may have, after he returned to Kerang, had relevance in his adjustment to civilian life, coping with the separation of his parents and the care for his mother who was then residing in a boarding house and to whom he was apparently very close. Later, after Mr and Mrs Davies were married, Mr Davies’ mother lived with them and it would appear that there was some tension by her presence in the family home. Mrs Davies referred to that in her evidence and again alcohol may have been consumed by her husband as a means of his coping with the apparent breakdown in the relationship with his mother.
100. What appears beyond doubt is that the late Mr Davies did drink copious quantities of beer over the years. That was occurring during the time that he was promoted initially from junior clerk to later becoming a stock agent, an auctioneer and a manager. It is impossible to escape the conclusion that there was an association between the employment of Mr Davies and his consumption of alcohol.
the eye injury
101. It appears that Mr Davies suffered an injury above his left eye in service resulting in a scar which caused him embarrassment. Mrs Davies was unnecessarily cross-examined about whether the scar was above his left eye lid or eyebrow. I am satisfied that a scar did exist at or around his left eye. But I cannot find that it was responsible, in whole or part, for his consumption of alcohol. I agree with the opinion of Dr Walton, namely, that if the effects of his physical appearance were such that he was upset and embarrassed to the extent that he self medicated with alcohol, it would be likely that he would be withdrawn or drink privately. His conduct as a stock and station agent, an auctioneer and a manager, being very public positions, together with having a bar in a hotel named after him, is not consistent with avoiding other persons.
conclusion
102. On the balance of probabilities I am unable to find that the material has raised a connection between the death of Mr Davies and his service. Satisfaction of factor 5 (a) of the Cirrhosis SOP, whilst achieved, does not suffice because as paragraphs 4 and the introduction at paragraph 5 recite, the factor relied upon must be related or connected, on the balance of probabilities, with the circumstances of service. No less deserving of consideration is s 196B (3) of the Act, particularly ss (3)(d). I think, having heard and read the evidence in these proceedings, the alcohol habit, precipitating the cirrhosis, more than likely had a connection with his civilian employment, rather than his military service.
103. The closest association I can find on the probabilities between service and the consumption of alcohol is of the late Mr Davies first commencing to drink during service. I cannot find for the reasons given earlier that consumption commenced only during the service on Thursday Island but even if it did, so little is known about the circumstances of that service that it is not possible on the balance of probabilities to find or attribute the alcohol habit to that period of service. Additionally, there was no evidence concerning his service at other Naval establishments (except for the references at paragraphs 82 and 83 earlier). It is not possible to conclude that a connection probably exists between the alcohol habit precipitating the cirrhosis and Naval service.
104. The decision under review will be affirmed.
I certify that the 104 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior Member
Signed: .....................................................................................
Personal AssistantDates of Hearing 1 and 2 February 2006
Date of Decision 3 April 2006
Solicitor for the Applicant Mr D De Marchi
Counsel for the Respondent Ms J Macdonnell
Solicitor for the Respondent Australian Government Solicitor
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