Downey and Repatriation Commission

[2011] AATA 326

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 326

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/4954

VETERANS' APPEALS DIVISION		)
Re		MARGARET DOWNEY

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms N Bell, Senior Member
Dr Hadia Haikal-Mukhtar

Date17 May 2011

PlaceSydney

Decision The Tribunal affirms the decision under review.

……….......[sgd]..............................
  Ms N Bell, Presiding Member  

CATCHWORDS – veterans’ entitlements – war widow’s pension – cause of death - non-operational service - cardiomyopathy - alcohol abuse and alcohol dependence  - relevant statement of principle - balance of probabilities

Veterans’ Entitlements Act 1986

McKenna v Repatriation Commission (1999) 86 FCR 144

REASONS FOR DECISION

Ms N Bell, Senior Member
Dr Hadia Haikal-Mukhtar   

1.Margaret Downey is the widow of Kevin Downey who served in the Australian Army during World War II from 26 October 1942 to 24 July 1946. He served wholly within Australia. His service was eligible war service within the meaning of the Veterans’ Entitlements Act 1986.

2.Mrs Downey has claimed a war-widow’s pension and seeks to establish that her late husband’s death was war caused.

3.There is agreement between the parties on the following:

(a)Mr Downey died on 15 April 1970 at the age of 50 years. The death certificate recorded a) myocardial infarction and b) alcohol myopathy. (which we understand to be alcohol cardiomyopathy).

(b)

Statement of Principles No. 24 of 2007 concerning cardiomyopathy applies to the kind of death suffered by Mr Downey. We note that

Mrs Downey relies on factor 6(a) of this SoP:

(a)       for males only, drinking at least 300 kilograms of alcohol within any ten year period before the clinical onset of cardiomyopathy;

(c)Mr Downey’s consumption of alcohol constituted alcohol abuse from 1948 until his death and alcohol dependence from the 1950s until his death.

(d)

The date of clinical onset of cardiomyopathy is unknown, but

Mr Downey was more likely than not to have consumed the quantity of alcohol required by factor 6(a) in SoP 24 of 2007 concerning cardiomyopathy before clinical onset.

(e)No factor in clause 6 of SoP 2 of 2009 concerning alcohol abuse and alcohol dependence is satisfied.

4.We accept the parties’ agreed facts and we concur with the parties’ agreed conclusions on the operation of the law.

5.Mrs Downey contends that the veteran’s death conforms with factor 6(a) of the cardiomyopathy SoP in that he consumed the amount of alcohol specified in that factor and that his alcohol consumption at that level was related to his service. She does not seek to rely on a diagnosis of alcohol abuse or alcohol dependence, but rather on the level of Mr Downey’s alcohol consumption. In this way, she contends, there is no need for a factor in the alcohol abuse and alcohol dependence SoP to be satisfied.

issues

6.The issues that remain for the Tribunal to consider are whether the failure to satisfy any factor in the alcohol abuse and alcohol dependence SoP renders the claim unsuccessful and, if not, whether Mr Downey’s alcohol consumption was related to his service.

is satisfaction of a factor in the alcohol sop essential for the success of the claim?

7.The Full Federal Court’s decision in McKenna v Repatriation Commission (1999) 86 FCR 144 is authority for the principle that a sub-hypothesis in a chain of hypotheses linking a disease or injury with war service must be upheld by the relevant SoP in order for the hypothesis as a whole to be upheld.

8.We note that Mr Downey’s service was not operational service and so no opportunity to hypothesise arises; war causation in relation to eligible service must be determined to the standard of the balance of probabilities. We also note that the factor in para 6(a) of the cardiomyopathy SoP relied on by Mrs Downey refers not to the diagnosed condition of alcohol abuse or alcohol dependence, but to a specified level of alcohol consumption. Specified levels of alcohol consumption do not feature in the diagnostic criteria for alcohol abuse or alcohol consumption in the relevant SoP.

9.Professor R P Mattick, of the National Drug and Alcohol Research Centre, has diagnosed both alcohol abuse and alcohol dependence on the basis of a lengthy interview with Mrs Downey. The question arises whether, in the face of that diagnosis, the alcohol abuse and alcohol dependence SoP must be applied.

10.We consider that in this case it does not because the only alcohol related factor in the cardiomyopathy SoP refers only to a level of alcohol consumption and not to any diagnosable alcohol based condition. The factor can be satisfied in the absence of a diagnosed condition and in this case it is satisfied. We note that in McKenna the chain of war causation sought to be established involved a factor that required the diagnosable condition of “hypertension”. It was thus necessary, given the existence of a SoP concerning hypertension, for one of the factors in the hypertension SoP to also be satisfied. Mr Downey’s circumstances are different and McKenna can be distinguished.

was mr downey’s consumption of alcohol related to his service?

11.There is scant evidence to support the contention that Mr Downey’s alcohol consumption was related to his service. We are mindful that, in considering this question we must apply the more rigorous standard of balance of probabilities and not the standard of reasonable hypothesis.

12.The only evidence in direct support of the contention is: a statement attributed to Mrs Downey in an anonymous interview to the effect that Mr Downey was left behind when his fellows went to serve overseas and the alcohol consumption that had begun socially started to increase; a statement written on Mrs Downey’s claim form to the effect that Mr Downey drank to relieve his frustration at not going overseas because of a collarbone injury; and a statement by Mrs Downey dated 21 April 2010 in which she said that her husband’s mother had told her that Mr Downey took up drinking on service. She also said in the same statement that her husband had told her that it was very stressful being in the Army, that his failure to serve overseas with his fellows was a constant source of guilt for him, that “breaking his collarbone and being unable to serve was very distressing for him as he was the only one of his group left behind and he drank to cope with all his guilt”.

13.On the other hand, in her interview with Professor Mattick, Mrs Downey repeatedly said (on at least five occasions) that she had no idea why her husband started to drink, although she also stated that he had been upset by not going overseas. Professor Mattick’s conclusion, after interviewing Mrs Downey, was that Mr Downey’s alcohol consumption did not arise out of his service.

14.The Writeway Research report states that Mr Downey’s Battalion never served overseas. We also note that Mr Downey injured his collarbone very late in his service and had already begun to be absent without leave and turn up at home drunk. It was conceded by Counsel for Ms Downey that this injury had nothing to do with Mr Downey’s failure to serve overseas. The opinion, expressed by Ms Downey in her claim and in one statement, to the effect that her husband drank to deal with that injury and its effect of preventing him from serving overseas with his fellows was based on inaccurate information from Mr Downey as to the effect of his collarbone injury and the movements of his Battalion.

15.While there may have been a temporal connection between Mr Downey’s commencement to drink alcohol and his service, if the reported comment of Mr Downey’s mother is accepted as truth, it is not probable that it was his service that gave rise to or contributed to his consumption of alcohol at the required level or that his consumption of alcohol at the required level was attributable to his service (see section 196B (14) of the Act).

16.We note that the Writeway Research report states that it is “reasonable to assume that some service members had easier access to alcohol than their counterparts in the civilian community”. However, we also note that Mrs Downey told Professor Mattick that when she saw Mr Downey return home without leave he would be drunk and bring home beer which he would drink in his room, showing that when absent without leave he was able to obtain sufficient alcohol to become intoxicated. A number of instances of Mr Downey being absent without leave were recorded in the Writeway Research report.

17.There is an entry on 19 February 1945 in Mr Downey’s service medical records of mild neurosis associated with shortness of breath after long marching. We were invited to extrapolate from this that he had suffered some psychological effect of camp life which gave rise to his alcohol consumption. First, we note that he had already commenced to be absent without leave and turn up drunk at home some two years previous to this entry and, second, the extrapolation urged on us is purely speculative.

18.We cannot, on the evidence before us, be satisfied that Mr Downey’s level of alcohol consumption or his drinking at any level of consumption, arose out of, was attributable to or was contributed to by his service.

decision

19.The Tribunal affirms the decision under review.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member and Dr Hadia Haikal-Mukhtar

Signed: ...........[sgd]..........................................................................
  Associate

Date of Hearing  23 March 2011
Date of Decision  17 May 2011
Counsel for the Applicant         Mr Mark Vincent
Solicitor for the Applicant          Mr Andrew Kemp
Solicitor for the Respondent     Mr Nigel Bunn, Department of Veterans' Affairs