Davies and Repatriation Commission
[2004] AATA 63
•23 January 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 63
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2002/797
VETERANS' APPEALS DIVISION ) Re BERYL AUDREY DAVIES Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr J Handley, Senior Member Date23 January 2004
PlaceMelbourne
Decision The decision under review is affirmed. (Sgd) J Handley
Senior Member
VETERANS’ ENTITLEMENTS – widow’s claim – death by cirrhosis of liver – alcohol dependence conceded – service relevantly on Thursday Island March 1945 to April 1946 – whether engaged in service outside Australia or in actual combat against the enemy – which standard of proof applies – whether necessary to satisfy a “sub hypothesis” – application of s.8(1)(a) and (b) – decision affirmed
Veterans’ Entitlements Act 1986 (Cth), s 6A(1), s 8(1)(a) and (b) and s 120(4)
Repatriation Commission v McKenna (1999) 86 FCR 144
Re Edgar v Repatriation Commission (AAT 10439, 10 November 1995)
Repatriation Commission v Kohn (1989) 87 ALR 511
Mabo and Others v State of Queensland (1992) 107 ALR 1
Repatriation Commission v Ahrenfeld (1991) 101 ALR 86
Re McKeown & Repatriation Commission (1996) 42 ALD 712
McKenna v Repatriation Commission (1999) FCA 323
Repatriation Commission v McKenna (1998) FCA 787
Woodward v Repatriation Commission [2003] FCAFC 160
Kattenbergv Repatriation Commission [2002] FCA 412
Repatriation Commissionv Law (1980) 31 ALR 140; (1981) 36 ALR 411
Roncevich v Repatriation Commission [2003] FCAFC 146
REASONS FOR DECISION
23 January 2004 Mr J Handley, Senior Member 1. The applicant applies to review a decision of the Veterans’ Review Board (“the VRB”) made on 17 July 2001. The VRB then affirmed a decision made by the respondent on 21 January 1999 to refuse a claim for war widows pension.
2. Mrs Davies is the widow of the late David Lyall Davies, who was born on 18 September 1925 and who died on 9 June 1990. The certified cause of his death was “hepatic coma; cirrhosis of the liver; chronic alcoholism”.
3. The late Mr Davies was engaged in eligible war service with the Royal Australian Navy between 5 September 1944 and 27 August 1946. He served within Australia only and the provisions of s 120(4) of the Veterans’ Entitlements Act 1986 (“the Act”) applies (despite the submissions referred to later in these reasons that part of the service should be found to have occurred outside Australia).
4. The hearing of the application commenced in Bendigo. Mr De Marchi appeared on behalf of Mrs Davies and Mr Douglass appeared on behalf of the respondent. Mr De Marchi relied on the provisions of SOPs number 36 of 1998 entitled “Cirrhosis of the Liver”.. Specifically he relied on factor 5(a) which provides that this factor that must exist before it could be said on the balance of probabilities that death from cirrhosis of the liver is connected with service. Factor 5(a) is reproduced as follows:
Consuming at least 220kg of alcohol (contained within alcoholic drinks) within any 10 year period before the clinical onset of cirrhosis of the liver;
5. The words from factor 5(a), namely “alcohol (contained within alcoholic drinks)” are defined at paragraph 7 of the SOPs as the measurement of 10 grams of alcohol per standard drink. On the basis of the deceased’s preferred “standard drink” being 7 oz glasses of beer, to achieve the threshold of 220 kilograms of alcohol, an average of two bottles of beer per day for ten years would need to be consumed. These calculations were agreed between the representatives of the parties.
6. Mr Douglass in a Statement of Facts and Contentions lodged prior to the commencement of the hearing conceded that the deceased did suffer chronic alcohol abuse from at least 1972 and the alcohol abuse did contribute to the development of cirrhosis. Additionally, he did not dispute the findings as recorded in the death certificate, namely death from cirrhosis of the liver. However, Mr Douglass submitted that satisfaction of SOPs number 36 of 1998, alone, will not permit the application to succeed. He submitted that Mrs Davies must also establish, and satisfy, a “sub-hypothesis” (refer Repatriation Commission v McKenna (1999) 86 FCR 144) being one of the factors of SOPs number 77 of 1998 entitled “Psychoactive Substance Abuse or Dependence”.
Beryl Audrey Davies
7.
Mrs Davies gave evidence in these proceedings. She had previously lodged a statement prior to the hearing before the VRB, and it is found at pages
19 to 21 of the T documents. The statement was attached to her application for pension made upon the respondent and extends her response to question 24 of her claim form (page 15) which asks the question “Do you believe the veteran’s service caused or contributed to his or her death?”. Her statement in response to that question is recorded as follows:
I knew my late husband before he jointed the Navy, as he lived opposite my parents home. At that time I know he neither drank alcohol or smoked. When he came home on leave I noticed he was smoking and occasionally went to the local hotel.
After discharge from the Navy we started to keep company and eventually married. I can remember asking him when and why did he start smoking and drinking. He said shortly after joining the Navy his new cobbers had started smoking and drinking alcohol in moderation. Cigarettes and alcohol were cheap and plentiful in the canteen, and when off duty. This is where they spent their leisure time to counter boredom. He said as he was drafted from depot to depot, boredom was always very evident, particularly as it was the first time, being away from home. By the time of discharge he said he was well addicted to smoking and a moderate drinker.
During his draft to H.M.A.S. Carpentarice depot (Thursday Isl) one of his duties was to assist with refuelling of naval sips. On one occasion he slipped on an oily surface falling on an object and cutting his left forehead, on the corner of his eye. The cut was awkwardly stitched. When the stitches were removed and the wound healed, there was a irregular shaped swelling, this swelling did not recede further.
After discharge he started work with a stock agent, which put him in the publics very much. On sale days and when in the hotel at night he was repeatedly [illegible] as to who hit him on the eye. As the years went by he became very conscious of the ugly healed wound, distressing him to the point where his intake of alcohol became part of his life style.
During 1970 as the result of stress and turmoil and wishing he had never joined the Navy, he had a severe nervous breakdown. He was referred to Melbourne for treatment which lasted approx 3 weeks. This being shock treatment upon discharge his memory was blank. Every 2 weeks he went down for follow up treatment which lasted 2 – 3 days. After an absence of 9 months he returned to work but it was soon realised his work effort was much reduced. This was a further worry to him and he soon returned to his usual alcohol dependence and intake.
At the age of 53 years his employer suggested he take early retirement. He accepted this decision when it was pointed out to him, his lifestyle was being controlled by alcohol abuse Over the last 12 years of his life he became more dependent upon alcohol, on many occasions coming home very late and very intoxicated. This completely wrecked our social life and more important still our married lives together.
In my opinion I believe this is a direct connection to the injury which my late husband received during his war service, which had the effect to alcohol abuse in causing cirrhosis of his liver disease and his death.
8. In evidence Mrs Davies said that she knew her husband when they were both teenagers. She said they both lived in the same neighbourhood and she was familiar with other members of his family. Mrs Davies said that her husband’s family were members of a local church who all abstained from alcohol consumption.
9. Mrs Davies recalled that when Mr Davies returned from service he was frequently attending hotels and consuming alcohol in considerable quantities. She said it was not unusual for her husband to consume ten or more glasses of beer on social occasions and she was aware that he was drinking alcohol during the day because she could smell it on his breath and on his clothing at the end of each day.
10. Mrs Davies said that she and Mr Davies married within two years of his discharge however his drinking pattern continued. In fact she said that he was consuming greater quantities of alcohol within the marriage. She understood that he was drinking up to one and a half bottles of beer at lunch time. She said in addition to consuming alcohol at a local hotel after work, he would take three or four bottles of the beer home which he would also consume each night. She recalled that her husband was argumentative and unpleasant, he upset her and their children frequently, he was depressed and he would frequently retreat after he arrived at home “to get out of the way”. On occasions she said that his behaviour was frightening but was not physically violent. She recalled that his health deteriorated, he had a poor appetite and he attended medical practitioners where he was given vitamin injections. He did not, however, cease his drinking.
11. Mrs Davies knew little of her husband’s experiences in service. She understood that he was required to fuel ships but otherwise he was reluctant to talk of his service. She understood “not many men did”. She said her father had also been reluctant to speak about his experiences during service.
12. Mrs Davies was however aware that her husband was injured on Thursday Island when he slipped and fell whilst fuelling a ship. He suffered a major laceration over his left eye, producing a prominent scar, which Mr Davies found embarrassing. She also understood that he was bored during service and had little to do when not working other than to consume alcohol with his colleagues. She understood that alcohol was plentiful and her husband was subject to peer pressure. She also understood that he exchanged rationed cigarettes for alcohol.
13. In cross-examination Mrs Davies acknowledged that her husband did participate in sport prior to enlistment but did not consume alcohol. She said that he played football after he was discharged but only then drank alcohol with other team mates at the end of football games. She recalled that he would also purchase bottled beer prior to local Saturday night dances and hide it on admission so that it could be consumed during those functions.
14. As a civilian, Mr Davies was a stock and station agent and an auctioneer. Mrs Davies said that he would drink with clients during the day and after work. She disagreed that there was a culture of drinking within that industry and said that other persons did consume non-alcoholic drinks as refreshment. She acknowledged that his job was stressful but he enjoyed his work “and was good at it”.
15. During service Mrs Davies was aware that her husband’s parents had separated and Mr Davies was upset by this. She said he was also upset because he was unable to obtain leave to return home.
16.
In re-examination Mrs Davies said that she understood her husband felt vulnerable to enemy attack on the occasions when he was working at
re-fuelling depots.
Peter Hughes
17. Mr Hughes is a member of Legacy and the RSL and was called as a witness for the applicant. He said that he travelled to “the Northern Islands” approximately four years ago during a tour and was told by a tour guide that a hotel on Thursday Island located near the re-fuelling jetty was a popular venue for service persons during WWII. The tour guide said that service personnel would have to walk past the hotel to arrive at the jetty and to return to their barracks.
18. In cross-examination Mr Hughes said that he did not serve with the late Mr Davies nor did he have much time on shore. He said most of his service was at sea. He said that he did not visit hotels during service and did not then consume alcohol. He was not aware of any restricted opening hours in hotels nor did he have any recollection of complaints by others of restricted opening hours. He said he was aware that the Navy did not approve of intoxicated sailors.
Dr Edward Cole
19. Dr Cole is a consultant psychiatrist who interviewed Mrs Davies on 20 November 2002 and provided a report dated 28 November 2002. Dr Cole was not called to give evidence and the applicant’s solicitor relied on his report. The report indicates that Dr Cole read copies of the s37 documents and interviewed Mr Hughes.
20. In the report Dr Cole obtained a history from Mrs Davies that her husband served on Thursday Island. It was reported that the late Mr Davies frequented a hotel close to the refuelling depot. It was reported that Mr Davies and his colleagues were “young and apprehensive” and during the time on Thursday Island, he and others would “get drunk”.. She understood that her husband was on Thursday Island for 18 or 19 months. Dr Cole took a history from Mrs Davies of her husband reporting that there were enemy submarines in the area of Thursday Island and that he and his colleagues were “afraid that they would be shelled or blown up”. Dr Cole reported that Mrs Davies had no recollection of her husband “talking about any other frightening experiences”. A history was also obtained of the late Mr Davies suffering a laceration above his left eye and thereafter his eyebrow “always hung down and he was very self conscious about it”.
21. In his interview of Mr Hughes, Dr Cole was informed that there were enemy submarines in the vicinity of Thursday Island; in July and August 1945 there were submarine alerts at Balikpapen; that 12 submarines operated out of Indonesian sea ports; an oil depot was a “sitting duck” for bombardments; a Liberty ship was torpedoed and sunk off Jervis Bay in August 1945; crews of oil depots were always on edge and aware that they could be a target; Thursday Island was not equipped with field guns or anti aircraft guns except for some “old Bofors”; there were no troops stationed on Thursday Island to protect refuelling personnel and they felt isolated; there were no threats from ground troops or surface ships but threats mainly came from submarines which had previously shelled the Australian coast and other persons that he (Mr Hughes) had spoken with who had served on refuelling depots other than Thursday Island had said that they were “edgy and apprehensive”.
22.Dr Cole concluded:
OPINION: The nervous symptoms which Mrs. Davies described her husband as having suffered would be consistent with his suffering from a chronic generalised anxiety disorder, if not from a post traumatic stress disorder. It would seem that his service on Thursday Island was in fact stressful and can reasonably be seen as having been responsible for the development of his nervous disorder. It was only after her husband joined the Navy that he began to smoke and drink and by the close of the war was a heavy drinker who continued to drink heavily until his death from cirrhosis of the liver. I note that the Board accepted that Mr. Davies’ death was due to his excessive drinking, although they did not accept that the stress of war service was a significant contributing factor. I would suggest, however, particularly in the light of the evidence provided by Mr. Hughes, that Mr. Davies’ war service was in fact stressful and was largely responsible for his drinking and generalised anxiety disorder which caused him to continue self medicating with alcohol.
In short, I believe that Mr. Davies’ war service was, on the balance of probabilities, responsible for his chronic nervous disorder and excessive drinking which in turn led to his premature death.
John McCarthy
23. Mr McCarthy is an associate professor and visiting fellow at the School of History at the Australian Defence Force Academy in Canberra. He prepared two reports at the request of the respondent dated 17 November 2002 and 3 February 2003.
24. From the departmental files Mr McCarthy noted that the late Mr Davies was mobilised for service on 5 September 1944 and demobilised on 27 August 1946. The history of his postings is recorded and relevantly there is a note of Mr Davies being posted to HMAS Carpenteria a “commissioned shore establishment and naval base” at Thursday Island. (Page 3 of T documents indicate that Mr Davies was engaged at Thursday Island between 7 March 1945 and 15 April 1946).
25. In his first report, Mr McCarthy noted that the “Japanese presence had disappeared” from the Australian coastline between September 1944 and March 1945 (when Mr Davies was serving in naval depots in Victoria) He noted that there were attacks by German submarines between December 1944 and February 1945 off the coast of South West Australia and Southern New South Wales).
26. With respect to the period of time that the deceased served at Thursday Island, Mr McCarthy noted – by reference to historical materials – that Japanese ground forces had been engaged in north east New Guinea being 800/1000 kilometres from Thursday Island. He concluded that the late Mr Davies would not have been exposed to danger from enemy land forces whilst stationed at Thursday Island from March 1945.
27. With respect to the risk of attack by Japanese aircraft between March 1945 until 15 August 1945 (when the Japanese surrendered) he found no materials indicating that Thursday Island had been subjected to any air attack however it was noted that on 18 March 1942, nine Japanese aircrafts circled Thursday Island. He noted that Horn Island, apparently in the Torres Strait, was attacked on eight occasions between 14 March 1942 and 18 June 1943, however he concluded “the state and deployment of Japanese air power between March 1945 and August 1945 must make it highly unlikely that the late veteran would have been exposed to danger from enemy air attack during this period”.
28. With respect to the risk of danger from Japanese naval forces, Mr McCarthy acknowledged that if Mr Davies was transferred to Thursday Island by sea, consideration must be given to whether he would have been exposed to risk. He noted that Japanese submarine forces had withdrawn from Australian waters by 1944 however he had learnt from a previous decision of the Tribunal that the vessel “Thomas M Cooley” was attacked on 24 February 1945 between Brisbane and Milne Bay. Apparently whilst Australian naval authorities discontinued the convoy system of transportation of personnel in waters south of Brisbane, the practise of transportation of personnel between Thursday Island and Darwin by convoy did continue. Mr McCarthy concluded that the possibility of submarine attack on a passing vessel from the Australian mainland to Thursday Island at March 1945 would have been remote.
29. In his second report of 3 February 2003, Mr McCarthy referred to the medical report of Dr Cole (refer earlier) which had been provided to him by the respondent. Specifically he addressed the issues raised by Mr Hughes with Dr Cole. Mr McCarthy reported that despite the information provided to Dr Cole by Mr McCarthy, “it has been found difficult to locate evidence which supports the view that enemy submarines were in the area during the period of the late veterans’ service at Thursday Island”.. Mr McCarthy identified a number of other source documents and materials in support of his conclusion that there was “no evidence which suggests Japanese submarines were operating against Australian targets in 1945”.
30. With respect to the risk of Japanese air attack, Mr McCarthy concluded that Thursday Island was of no strategic significance to the Japanese after March 1945. Mr McCarthy concluded that from the evidence available to him any danger faced by the late Mr Davies on Thursday Island was “very limited”. Nonetheless he acknowledged that it would have been “most unlikely” that Mr Davies and his colleagues would have been aware of the withdrawal of Japanese vessels before March 1945 nor would they have been aware that the Pacific conflict would have concluded by August 1945.
Conclusion and Reasons for Decision
31. The representatives’ for the parties raised a number of issues in their closing submissions which will be separately acknowledged as follows.
Standard of Proof
32. Mr De Marchi submitted that there was an issue as to the applicable standard of proof. He submitted that by reason of the late Mr Davies serving at a refuelling depot he was in danger of attack from enemy forces. Whilst acknowledging that there was a “lack of direct strikes on the base, there was evidence of enemy activities and the base would have been a target if at all capable of being struck by the Japanese either by air, by submarine or by landing parties of Commandos”.. It became evident during this submission that Mr De Marchi was referring to s 6A(1) of the Act where, at Item 1, under the sub-heading of “Operational Service”, the “Nature of Service” is described at Item 1 (a) to (d) as follows:
(a)continuous full-time service outside Australia during a war to which this Act applies
(b)continuous full-time service for a period of at least 3 months in that part of the Northern Territory that is north of the parallel 14 degrees 30 minutes south latitude (including any of the islands adjoining the Northern Territory) between 19 February 1942 and 12 November 1943 (both dates inclusive)
(c)continuous full-time service during a war to which this Act applies rendered within Australia immediately before, or immediately after, a period of continuous full-time service of the kind referred to in paragraph (a) or (b)
(d)continuous full-time service rendered within Australia during World War 2 in such circumstances that the service should, in the opinion of the Commission, be treated as service in actual combat against the enemy
Accordingly, if the veteran was found to have been engaged in “continuous full-time service outside Australia” (a), or, service that should be treated as “service in actual combat against the enemy”, (d), Mrs Davies is entitled to the beneficial standard of proof of reasonable hypothesis.
33. Mr De Marchi continued his submissions (transcript p23-24) that “a person in a refuelling station during the war where learning of ship being sunk, knowing that the Japanese have attacked areas of various parts of Australia and could reasonably have expected that his life would be in danger or serious harm by the fact of being on that particular station, so we say it would be reasonable to ascribe to Mr Davies that he was in fact confronted with the events involving the potential of death or serious injury when he was there……….”. He submitted that Mr Davies was part of “the overall defensive effort of Australia at war. He was opening himself up to danger from the enemy, but the question is not was he in real danger from enemy forces. That is not the question…….. The question was he should be treated as having service in actual combat against the enemy”. Mr De Marchi concluded that the veteran was engaged in “preparations for war, the refuelling of ships and aircrafts that are necessary for the conduct of operations offensive and defensive and therefore when Mr Davies was shipped on the island run the risk of enemy action getting there and of course was running the risk and was preparing for those activities which we say are proper reading of the Act and a proper understanding of the background upon which the legislation is based clearly support that he was facing real danger from enemy forces”.
34. Mr Douglass submitted that at all relevant times, the journey to Thursday Island did not attract the provisions of s 6A(1) of the Act and the standard of proof applicable was the balance of probabilities.
35. The first issue is to determine whether the travel to Thursday Island and the service at Thursday Island is to be regarded as service within or outside Australia.
36. In Repatriation Commission v Kohn (1989) 87 ALR 511; 18 ALD 414; 10 AAR 363; G1252 of 1988 FED No. 337; a decision of Hill J in the Federal Court, his Honour heard an appeal against a decision of the Tribunal which found that the veteran was engaged in continuous full-time service outside Australia during a voyage between Townsville and Cairns. The Tribunal apparently decided that by reason of the veteran travelling outside “the boundary of the territorial sea” he was deemed to have been engaged in continuous full-time service within the meaning of s6(1).
37. His Honour examined the history of the legislation and the intent behind it. At paragraph 54 he concluded:
It was the intention of the legislature that it was only members of the Armed Forces who, in truth, were on service outside Australia during World War 2 who should receive this preferential treatment as to pensions. It cannot be conceived that Parliament intended that veterans who were at all times stationed in Australia but who travelled from one place in Australia to another and thereby were for short periods of time outside Australia, should be treated in the same way as veterans who fought in a theatre of war, sailors who served continuously on a ship engaged in or likely to become engaged in combat or members of the Air Force engaged in flying missions outside Australia.
38. He concluded (paragraph 56) “…….. an interpretation of s.6(1)(a) should be advanced which would exclude mere transitory passages outside Australia from the definition of “operational service” in s.6(1) (a)”.
39. In Re Edgar v Repatriation Commission (AAT 10439, 10 November 1995)a decision of Deputy President McDonald and Members Ermert and Shanahan, conducted a review with respect to a veteran who served on Thursday Island. The Tribunal noted that Thursday Island was part of the Torres Strait which was annexed to the Colony of Queensland by proclamation on 1 August 1879, thereby forming part of the territory of Australia. The Tribunal also noted that the High Court in Mabo and Others v State of Queensland (1992) 107 ALR 1 found that the islands within the Torres Strait (known as the Murray Islands) were part of Australia. The Tribunal concluded that the veteran could not be regarded as being engaged in overseas service pursuant to s 6(1)(a) of the Act whilst he was serving on Thursday Island.
40. With regard to the above authorities I am satisfied that the late Mr Davies did not serve outside Australia within the meaning of s 6A(1) item 1(a) of the Act.
41. Mrs Davies may however obtain the beneficial standard of proof if it can be found that Mr Davies was engaged in operational service. This finding will only be permitted if the nature of the service comes within the provisions of the Table appended to s 6A of the Act. For the purposes of this analysis the only relevant provision would be item 1(d) where for the purposes of deciding operational service, a veteran must have been engaged in “continuous full-time service rendered within Australia during World War II in such circumstances that the service should in the opinion of the Commission be treated as service in actual combat against the enemy”.
42. This provision was considered by the Full Federal Court in Repatriation Commission v Ahrenfeld (1991) 101 ALR 86 by Wilcox, Gummow and Hill JJ. The Full Court upheld a finding made by the primary Judge that the expression “actual combat against the enemy” included “conduct which answered the description of integral participation in an activity directly intended for an encounter with the enemy, whether offensive or defensive in character”. The Court concluded that the facts as found by the Tribunal would fall within that description. The circumstances of the application involved a radio operator at Onslow on the north west coast of Australia. Although Onslow was not actually bombed during the veterans’ service, he was a radio operator who was engaged in passing on information concerning enemy activity to headquarters personnel, he was on duty when enemy aircraft were in the immediate area and on one occasion an enemy aircraft passed over Onslow at night. The Court concluded – without making a finding as to whether the veteran had been engaged in actual combat against the enemy - that a broad and liberal interpretation should be given to the meaning of those words and that it was not unlikely that there was a “basis for the formation of an opinion by the Commission that there was service in actual combat against the enemy”.
43. In Re Edgar (refer earlier) the veteran served in the Torres Strait – including service on Thursday Island – between 14 June 1943 and 5 July 1944 as a member of a machine gun battalion. The Tribunal found as a fact that there was no enemy activity in the Torres Strait during the veterans’ service and bombs were not dropped – as he had alleged. The Tribunal also found that, even if bombs had been dropped on Thursday Island (after a raid which had occurred on Horn Island on 18 June 1943) the veteran was not engaged in actual combat against the enemy. It found that the veteran had taken shelter in a trench, he was not armed, was not involved in firing guns of any activity and was not engaged in any activity intended for an encounter with the enemy, whether offensive or defensive in character.
44. In Re McKeown & Repatriation Commission (1996) 42 ALD 712, the Tribunal considered service of the veteran in the north of Australia in 1942 and 1943. Relevantly the Tribunal considered whether the veteran was engaged in operational service during a voyage from Brisbane to Thursday Island in September 1943 where he was on watch for enemy mines, submarines and aircrafts. During that voyage, which lasted between 7 to 8 days, the vessel on which the veteran travelled was escorted by aircraft during daylight hours with its bomb bay doors open. Watch was also kept at night. Submarine attacks did not occur during the voyage. The Tribunal found that the veteran in those circumstances was engaged in operational service. Applying the decision in Ahrenfeld the Tribunal concluded that to watch for an enemy who’s eminent presence is thought likely with a view to encountering, or combating that enemy, offensively or defensively, is to engage in an activity intended for an encounter with the enemy.
45. The circumstances of the present application are in my view different to that of Edgar, Ahrenfeld and McKeown.
46. Mr Davies arrived at Thursday Island some 18 months after the voyage of McKeown at a point in time when Japanese activity had ceased. During his service on Thursday Island there is no material or evidence pointing to any Japanese or German activity. Mr McCarthy reported that the Japanese presence had “disappeared” by “September 1944/ March 1945” and the final submarine attacks by German vessels occurred between December 1944 and February 1945. Additionally Mr McCarthy reported that there was no evidence of any Japanese activity on land or at sea and the Japanese submarine forces had withdrawn from Australian waters by 1944. There was no material pointing to any bombing of Thursday Island and whilst nearby Horn Island was bombed between 14 March 1942 and 18 June 1943, this was some 21 months before the veteran arrived on Thursday Island.
47. A comparison of the circumstances of the late Mr Davies’ and the circumstances in McKeown and Ahrenfeld are distinctly different. Mr Ahrenfeld was directly engaged in actual combat to the extent that he, as a radio operator, received and relayed messages and worked on one known occasion where an enemy aircraft passed overhead. Mr McKeown was directly engaged in actual combat to the extent that he was on watch to observe for enemy vessels and floating mines at a time when his vessel was under escort and the bomb doors of his vessel were open. Coincidently Mr McKeown was travelling to Thursday Island but that voyage was in September 1943, some 18 months before the arrival of Mr Davies.
48. There is no evidence or material pointing to Mr Davies being engaged in any combat as is traditionally understood. He was engaged in refuelling vessels only. There is nothing which points to him taking arms or discharging arms. There is no material that he observed at any time any enemy activity or members of enemy forces. In fact he was only on Thursday Island for approximately four months before the Japanese surrender in August 1945.
49.
I am unable in the circumstances to find as a fact that Mr Davies was engaged in “actual combat against the enemy” during the period of his continuous
full-time service within Australia whilst at Thursday Island. In the circumstances I am prohibited from making a finding that the service at Thursday Island was “operational” within the meaning of s 6A(1) item 1(d) of the Act.
50. Accordingly this application must be decided upon the balance of probabilities and not as a reasonable hypothesis as was contended by the applicant’s representative.
Statement of Principles
51. There was no dispute between the parties’ that the relevant cause of death of Mr Davies was cirrhosis of the liver. In the assessment period commencing 18 January 1999, (when the claim for widow’s pension was made) and until the present date, the only SOPs with respect to cirrhosis of the liver is Instrument No.36 of 1998.
52. Paragraph 4 of the Instrument provides that at least one of the factors set out in paragraph 5 must be “related to any relevant service rendered by the person”.
53. The preamble to paragraph 5 provides that a factor contained within this paragraph must exist before it could be said on the balance of probabilities that death from cirrhosis of the liver is connected with the circumstances of a person’s relevant service. The parties’ agree that the only applicable factor is (a) namely:
(a)for men, consuming at least 220kg of alcohol (contained within alcoholic drinks) within any 10 year period before the clinical onset of cirrhosis of the liver.
54. There is no dispute between the parties that the quantity of alcohol and the duration of consumption is satisfied. The issue is whether the claim can be determined by reference to this SOPs only or whether another SOPs must also be satisfied.
55. Mr De Marchi submitted, in anticipation of the respondent’s submissions, that another SOPs – alcohol abuse – need not be met. He contended that “our response to that is that this is incorrect in law because we don’t have to meet that alcohol abuse statement of principle where the drinking of the quantity required in the sclerosis (sic) of the liver statement of principle which is the cause of death can be met by reference to service at that level. It would be different if the veteran were to also claim alcohol abuse or dependence and be seeking to be compensated for a pension for that, but that is not the case here. It is a widow’s claim and we are really looking at s8(1)(a) and (b) and where there is an association with service and death and all that we require really is to link of one of those causes of death, in this case sclerosis of the liver with service in order to support that” (transcript p2).
56. Mr Douglass contended that although this application did not involve consideration of whether a reasonable hypothesis existed, nonetheless the principles of the Full Court decision in McKenna v Repatriation Commission (1999) FCA 323 apply. He submitted that the Tribunal is required to apply the alcohol abuse SOPs because it is one of the links in the overall chain of connection to service. Whilst it was conceded that the veteran did suffer from alcohol abuse and that it led to cirrhosis of the liver, the respondent contended that factor 5(b) of Instrument No.77 of 1998 applied which required a finding that the deceased “experienced a severe stressor”.
57. In McKenna the veteran sought a finding that a reasonable hypothesis existed connecting ischaemic heart disease and atherosclerotic peripheral vascular disease with service. The Tribunal had found that the veteran had the condition of hypertension accepted by the respondent as being service related under the Repatriation Act 1920 however the Full Court found that the veteran would need to satisfy the SOPs with respect to hypertension in order for the hypothesis to be raised. In making that finding the Full Court relied on (and upheld) a decision of Goldberg J in Repatriation Commission v McKenna (1998) FCA 787 where satisfaction of the SOPs with respect to hypertension was necessary in order to relate or connect the claimed conditions with the service rendered.
58. The Full Court found that if a hypothesis is to be upheld by a SOPs connecting a disease with the circumstances of service, the hypothesis must point to a connection with service and must comprise a number of links of factors each of which must be upheld by a SOPs.
59. The present case (having regard to the findings above) does not involve consideration of a reasonable hypothesis but the connection between service and cirrhosis of the liver nonetheless involves consideration of those events, links or factors which in totality permit a finding on the balance of probabilities of cirrhosis of the liver being connected with relevant service. Additionally, clause 4 of Instrument No.36 of 1998 provides that one of the factors in paragraph 5 “must be related to any relevant service rendered by the person”.. The factor relied upon in paragraph 5 of itself will not provide a connection or relationship with relevant service. That is to say, consuming alcohol over a defined period of itself is not related or connected to service. There must be some other event or circumstance which connects with service on the one hand, and with consumption of alcohol on the other. That event or circumstance is to be found, if at all, by satisfaction of a factor within a SOPs establishing the “sub-hypothesis”.
60. Accordingly I dismiss the contention of Mr De Marchi’s that the SOPs with respect to alcohol abuse or dependence need only be considered if those conditions were specifically claimed by Mrs Davies. For the reasons given above, together with the application of s 120B(3) of the Act, it follows that the connection between service and death by cirrhosis of the liver would only be achieved on the balance of probabilities, in the present application, if there is satisfaction of the SOPs with respect to alcohol dependence or alcohol abuse.
61. The SOPs with respect to alcohol dependence or alcohol abuse is No. 77 of 1998 which is the only Instrument regarding that condition that applies within the assessment period.
62. That the late veteran suffered from alcohol dependence or alcohol abuse is beyond doubt. It is consistent with the evidence of Mrs Davies and the contents of the report of Dr Cole. It is consistent also with the diagnostic criteria found at paragraph 2 of the Instrument.
63. Mr Douglass submitted that the only applicable factor under paragraph 5 of Instrument No.77 of 1998 was (b) namely:
5(b)experiencing a severe stressor within the one year immediately before the clinical onset of alcohol dependence or alcohol abuse.
64. The expression “experiencing a severe stressor” is defined at paragraph 8 of the Instrument as follows:
“experiencing a severe stressor” means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
In the setting of service in the Defence Forces or other service where the Veterans’ Entitlements Act applies events that qualify as severe stressors include:
(i)threat of serious injury or death; or
(ii)engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence.
65. The meaning to be given to the words “experienced”, “witnessed” and “confronted” as they appear within the definition of “experiencing a severe stressor” was discussed by the Full Court in Woodward v Repatriation Commission [2003] FCAFC 160 at paragraphs 122 to 125. Those paragraphs need not be repeated because in order to satisfy the definition, any experiencing, witnessing or confronting of an event (if any) by the deceased must have involved actual or threatened death or serious injury or a threat to him or another person which event/s might have evoked intense fear, helplessness or horror.
66. There is nothing which would permit a finding, on the balance of probabilities, of Mr Davies satisfying this definition. Little is known about the conditions to which Mr Davies was exposed in his travel to, and service upon, Thursday Island. The evidence of Mr McCarthy points to an absent risk of attack or confrontation with opposing forces (refer earlier findings). I can find nothing which would support a finding that any of the elements with the definition are satisfied. Indeed the evidence of Mrs Davies that her husband suffered from boredom would suggest the conditions of service did not approach a finding of the deceased having experienced a severe stressor.
67. Whilst there is much to suggest that the deceased was embarrassed by the facial scarring, which is likely to have contributed to his change of personality and consumption of alcohol, the circumstances of the fall, which gave rise to the facial injury and scarring does not meet the definition of “experiencing a severe stressor”.
68. The other factor which may be applicable within Instrument No.77 of 1998 is 5(a) namely:
(a)suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse.
69. “Psychiatric disorder” is defined within the Instrument as:
“psychiatric disorder” means any Axis 1 or 2 disorder of mental health attracting a diagnosis under DSM IV.
70. Dr Cole referred to the deceased in his report as suffering from a disorder which might appear to be psychiatric in nature namely “nervous symptoms”, and “chronic generalised anxiety disorder” and “post traumatic stress disorder”. It was not known at the hearing whether any of those conditions were a “psychiatric disorder” as defined by the Instrument.
71. An examination of DSM IV reveals that an Axis 1 or 2 disorder of mental health are described by generic or general subheadings. Assuming therefore that the diagnoses provided by Dr Cole fall within either the Axis 2 disorders of “Borderline disorders of personality” or “Disorders of personality not otherwise specified” or the Axis 1 disorders of “Disorders of the personality”, factor 5(a) of Instrument No.77 of 1998 is partly satisfied. But, in order to connect all the links between service and death, the SOPs applicable to the “psychiatric disorder” within Axis 1 and 2 must be satisfied.
72. The only applicable factor of the SOPs concerning Post-Traumatic Stress Disorder (SOPs No. 4 of 1999) is factor 5(a) amended by SOPs No. 55 of 1999 which is “experiencing a severe stressor prior to the clinical onset of post-traumatic stress disorder”. For the reasons expressed earlier (concerning the alcohol abuse SOPs) this factor cannot be satisfied.
73. The factors of the SOPs concerning Generalised Anxiety Disorder (Nos. 2 of 2000 and 381 of 1995) and the associated definitions cannot be satisfied upon the evidence of this application. The deceased did not “experience a severe psychosocial stressor” or have a “clinically significant psychiatric condition: or a “major illness or injury” as defined by SOPs No. 2 of 2000 or an “anxiety disorder due to a general mental condition” as defined in SOPs No. 381 of 1995.
74. I am therefore satisfied that in order to connect service with the cause of death, consideration of SOPs other than the SOPs applied to the cirrhosis of the liver must be satisfied (the “sub-hypothesis”).. Consideration of the other SOPs failed to satisfy the connection with service which gave rise to a drinking habit precipitating cirrhosis of the liver. The connection therefore between service and death does not exist, on the balance of probabilities.
APPLICATION OF S 8(1) (a) (b)
75. Mr De Marchi submitted that s 8(1)(a) and (b) of the Act applied, “where there is an association with service and death and all that we require really is to link of one of the causes of death, in this case sclerosis [sic] of the liver, with service in order to support that”.. (transcript p2).
76. I was unclear at the time that submission was made and remain unclear upon review of the transcript, as to the relevance of this submission, save that it appears to have been put into the context of whether the consumption of alcohol by the deceased was attributable to his eligible war-service (transcript page 5 and 20). Additionally Mr De Marchi relied on Federal Court decisions of Kattenbergv Repatriation Commission [2002] FCA 412, and Repatriation Commissionv Law (1980) 31 ALR 140; (1981) 36 ALR 411with respect to the words “arose out of” and “attributable to”.. He also relied on a recent Full Federal Court decision of Roncevich v Repatriation Commission [2003] FCAFC 146. In that decision Mr De Marchi sought to rely on the minority decision only.
77. Section 8(1)(a) of the Act clearly can have no application because it concerns death resulting from operational service. Section 8(1)(b) of the Act applies where death arose out of or was attributable to eligible service. It would appear both those sub-sections are given credence in SOPs where the usual drafting of each paragraph 4 (being the prelude to paragraph 5 which contain the factors that must be satisfied) provides that one of the factors must be related to relevant service of the veteran. These sub-sections do not operate to avoid compliance with a SOPs – which was, in part, a submission of Mr De Marchi in his resistance of having to satisfy another SOPs which would link cirrhosis of the liver to service. The sub-sections and paragraph 4 of each SOPs require an association with service, whether “resulting from an occurrence”, in the case of operational service or, “arose out of or was attributable to” in the case of eligible service.
78. The decisions in Law and Repatriation v Tuite (1993) 29 ALD 609 are authorities for the expressions “arose out of” and “attributable to” having an element of causation to the service being a contributing cause to injury. I cannot find, from the evidence heard and read in these proceedings that the provisions of s 8(1)(b) of the Act have been satisfied.
79. Upon the foregoing reasons I am unable to find on the balance of probabilities that the death of Mr Davies was war-caused. The decision under review will be affirmed.
I certify that the 79 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr J Handley, Senior MemberSigned: Holly Weston
AssociateDates of Hearing 4 July and 12 August 2003
Date of Decision 23 January 2004
Solicitor for the Applicant Mr D De Marchi
Departmental Advocate Mr R Douglass
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