Fisher and Repatriation Commission
[2006] AATA 993
•23 November 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 993
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2005/394
VETERANS’ APPEALS DIVISION ) Re JACK VERNON FISHER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date23 November 2006
PlaceMelbourne
Decision The decision under review is set aside and in substitution IT IS DECIDED that hypertension is war‑caused. ..............................................
Senior Member
VETERANS’ AFFAIRS – operational service in the Pacific – excessive consumption of alcohol – respondent conceded diagnosis of hypertension and alcohol quantities – whether consumption attributable to service – decision set aside
Statements of Principles Instrument No 35 of 2003
Statements of Principles Instrument No 1 of 2000
Statements of Principles Instrument No 3 of 2004Statements of Principles Instrument No 4 of 2004
Re Campbell and Repatriation Commission [2006] AATA 455
Re Collier and Repatriation Commission [2004] AATA 111
Re Jensen and Repatriation Commission [2005] AATA 474
Re Shubinski and Repatriation Commission [2005] AATA 1273
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Cotton [2006] FCA 1523
Repatriation Commission v Tuite (1993) 17 AAR 158
Repatriation Commission v Law (1980) 47 FLR 57
REASONS FOR DECISION
23 November 2006 Mr John Handley, Senior Member 1. Mr Fisher, the applicant in the proceedings, is presently 79 years of age. He has applied to review a decision made by the Veterans’ Review Board on 8 March 2005 which affirmed a decision previously made by the respondent that hypertension was not war‑caused.
2. During the assessment period which commenced on 20 May 2004 there were two Statements of Principles issued with respect to hypertension namely, Instruments No 35 of 2003 and No 3 of 2004.
3. The applicant relied on two factors within Instrument No 35 of 2003 namely, factors 5(b) (as amended by Instrument No 3 of 2004) and (n).
4. The latter factor referred to “suffering from a clinically significant anxiety disorder for the six months immediately before the clinical onset of hypertension;”.
5. It was asserted prior to the hearing, and during the applicant’s evidence, that the basis for the condition of generalised anxiety disorder – which he submitted was a condition that he suffered and which satisfied factor (n) ‑ arose by reason of him being stung by jelly fish when cleaning the bilges of HMAS Stuart at or near Raboul and when that vessel was proceeding in waters feared to contain mines which had broken free from their moorings. Another basis for the assertion of the presence of generalised anxiety disorder to which there was a contribution by service, was the presence of a shark at Modewa where the applicant worked in a gang securing an oil pipeline.
6. Dr Epstein examined the applicant at the request of his solicitors and gave evidence in these proceedings.
7. The case for the applicant proceeded on the basis that the “clinically significant anxiety disorder” as defined in the hypertension instrument “means any anxiety disorder attracting a diagnosis under DSM IV sufficient to warrant ongoing management by a psychiatrist, counsellor or general practitioner”. The particular anxiety disorder was asserted to be generalised anxiety disorder which attracted Instrument No 1 of 2000. In order to satisfy that Instrument, the applicant needed to have experienced “a severe psychosocial stressor . . .”.
8. Dr Epstein said in evidence that it was his opinion that the episodes involving jelly fish and the presence of a shark did not constitute “a severe psychosocial stressor” as defined. The applicant’s representative then conceded that the applicant could not satisfy factor (n) of the hypertension Instrument. In my view that concession was properly made.
9. On the evidence heard, at that stage of the proceedings, I had some doubt whether the applicant could establish a diagnosis of generalised anxiety disorder. His evidence did not point to him satisfying the diagnostic and clinical criteria of that condition as defined within the instrument (which is a word perfect reproduction from DSM IV). Additionally, Doctors Strauss and Rose who examined on behalf of the respondent did not find that the applicant suffered from generalised anxiety disorder. In concluding this part, I am satisfied that the applicant could not satisfy factor (n) of the hypertension Instrument because not only did the applicant not ever have occasion to consult a psychiatrist, counsellor or general practitioner with respect to his alleged “clinically significant anxiety disorder”, it would have been unlikely on the material heard and read that that condition – even if it did exist – would have been “sufficient to warrant ongoing management” by a psychiatrist, counsellor or general practitioner.
10. Accordingly, the claim proceeded only by reliance upon factor 5(b) of the hypertension Instrument. The applicable Instrument in force during the assessment period, appears in Instrument No 3 of 2004 and is reproduced as follows:
“(b)consuming an average of at least 200 grams per week of alcohol for a continuous period of at least 6 months immediately before the clinical onset of hypertension, which cannot be decreased to less than an average of 200 grams per week of alcohol; or
. . .”
11. The respondent conceded the diagnosis of hypertension. It also conceded that the clinical onset of that condition occurred on 15 December 1994, consistent with an opinion expressed by the applicant’s general practitioner found at page 75 of the T‑documents. The respondent also conceded that the requisite quantities of alcohol were consumed for a continuous period of at least six months immediately before the clinical onset of hypertension. However, the respondent submitted that the applicant’s consumption of alcohol both throughout his service and subsequently, was not attributable to his service. The applicant submitted to the contrary. This review therefore is concerned only with the fourth stage of the Deledio analysis (Repatriation Commission v Deledio (1998) 49 ALD 193) namely, that the condition of hypertension shall be determined as war‑caused unless I can be satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.
12. The language of factor 5(b) as contained within the amending Instrument had been the subject of a number of decisions within the Tribunal, all of which have commented upon the language of it (refer Re Collier and Repatriation Commission [2004] AATA 111; Re Jensen and Repatriation Commission [2005] AATA 474; Re Shubinski and Repatriation Commission [2005] AATA 1273; Re Campbell and Repatriation Commission [2006] AATA 455).
13. No less than approximately 10 minutes before the hearing in this application resumed on 16 November 2006, I learnt that Rares J delivered a decision, that morning, in the Federal Court in Repatriation Commission v Cotton [2006] FCA 1523.
14. In that application His Honour examined the equivalent factor under the Instrument with respect to eligible service (Instrument No 4 of 2004) and which referred to consumption of at least 300gms per week. Relevantly His Honour recorded as follows (his comments being no less relevant, despite a different quantity of alcohol in this Instrument):
23 Factor 5(b) does not refer to concepts of alcoholism, alcohol abuse or alcohol dependency. Each of those concepts may involve the need to establish a state of mind on the part of an applicant in which the consumption of alcohol is or is not involuntary, or can or cannot be controlled.
24 A strict literal reading of factor 5(b) suggests that even where a veteran is suffering from a form of addiction to alcohol but could, if he or she chose, reduce the intake (e.g. by being admitted to an institution at which alcohol dependency could be treated and at which no alcohol was permitted) but did not do so would not be capable of satisfying the conditions. Any possibility of a person consuming less than the average 300 grams of alcohol per week would negate a claim which had been medically established by the actual consumption of that quantity. In effect, a person who was caused by his or her service to the nation to embark on a drinking habit of consuming more than 300 grams of alcohol per week, and who became sick with hypertension, would not be able to receive a benefit because it was logically possible for him or her not to have drunk as much. Such a construction is, in the absence of express words, one which produces consequences which are irrational and unjust (Public Transport Commission (NSW) v J Murray-Moore (NSW) Pty Limited (1975) 132 CLR 336 at 350 per Gibbs J.
25 There is no textual indication in factor 5(b) as to the degree of possibility involved in the concept of ‘cannot be decreased’ on the construction posited by the Commission. Many veterans would miss out on having their claims considered if a standard were applied of such a draconian kind in its absolute terms. The tribunal noted, drawing on the reasoning on the Full Court of this Court in Repatriation Commission v Tuite (1993) 39 FCR 540 at 541 and 545, Mr Cotton’s introduction to alcohol occurred during his service from his being involved with other recruits and trainees as well as others in a service environment. The Tribunal was particularly well constituted to make such a finding, having as its members Rear Admiral Horton AO and Dr Thorpe. It would be perfectly possible to frame a factor under s 196B(3)(c) by reference to precise medical conditions. Indeed, a previous statement of the principles concerning hypertension (instrument No 32 of 2001) did so.
26 However, what the present factor 5(b) says that it is a condition that a minimum amount of alcohol be consumed and that it cannot be decreased. Even if one were to construe the word ‘cannot’ as meaning that it was not possible at the time of the consumption to decrease the amount consumed, the inclusion within the same definition of the two concepts leads to a real risk of circulatory. It must always be possible to reduce one’s consumption of alcohol. It would be odd for the factor to prescribe a level of consumption and then to deny it having an effective operation by using a criterion, if it could be read as the Commission suggests, which would always render reference to the factor to be pointless.
. . .
28 I am of opinion that the proper construction of factor 5(b) recognises that the present tense is used in the verb ‘cannot’ to emphasize to the decision-maker that the consumption of an average of at least 300 grams per week of alcohol for the continuous period of at least six months immediately preceding the clinical onset of hypertension is not to be ignored under any circumstances. Thus, even where the medical evidence might demonstrate that the veteran consumed less than 300 grams per week of alcohol immediately before the clinical onset of the hypertension and that that consumption was, as matter of fact, clinically causative of the condition, the concluding clause excludes the exercise of that clinical conclusion from consideration by the decision-maker.
15. It was submitted by Mr Moore on behalf of the applicant that there was a sufficiency of connection with service to explain the applicant’s alcohol habit. The stressors of service, being the fear of floating mines, undertaking work in hot uncomfortable environments, working in the proximity of sharks, peer pressure, availability of alcohol and significant free time all pointed to the connection.
16. Mr Herman who appeared on the second day of the hearing, submitted that the consumption of alcohol by the applicant during and subsequent to service was not contributed to by his service. He submitted that the Navy attempted to ensure that alcohol consumption was kept to minimum levels by prohibiting rookies from drinking on base and later making beer available by limited ration only. Any opportunity on the part of the applicant to “trade” or “barter” other products for beer was by his choice and was not a feature or an event associated with or attributable to service.
17. Additionally it was submitted that the reasons for drinking were consistent with many other men in the 1950’s who returned from war and who were engaged either in re-training or in occupations and who drank to excess – on occasions – because of hotel closing times then existing in Victoria.
conclusion and reasons for decision
18. The circumstances of the applicant commencing to drink alcohol and his subsequent alcohol habit in my view draw a close parallel with the Full Federal Court decision of Repatriation Commission v Tuite (1993) 17 AAR 158 (“Tuite”) (save that the veteran alleged a smoking habit – it also being addictive and thought to be a relaxant ‑ by service).
19. When the applicant enlisted on 24 April 1945 he was a teetotaller. He came from a family that did not drink. His training with the Navy commenced at Cerbrus which prohibited trainees or rookies from drinking at base. Every three or four weeks he and others were given weekend leave and they travelled to Melbourne to drink beer. Apparently the popularity of leaving base to travel to Melbourne for that purpose was so great that a special train was made available from Crib Point to Flinders Street. The applicant said that he initially commenced to consume alcohol as a relaxant, having regard to stresses that he was exposed to during training and the discipline of that training. The quantities of alcohol consumed when he travelled to Melbourne were considerable and described in evidence as “a lot” and of sufficient quantity to make him and others “not stable”.
20. At the completion of training at Cerberus, the applicant was posted to HMAS Stuart which was moored in Sydney. The applicant recalled having to wait between 7 and 10 days before that vessel left port for New Guinea. During that time he was not allocated any tasks but spent most of that time at a local bar frequented by naval personnel. He recalled that he was then drinking heavily.
21. Eventually HMAS Stuart travelled into tropical waters and the applicant completed service at Modewa, Ladawa and other locations at or near Milne Bay. The applicant said that he frequently worked “tropical hours” which involved a daily work routine of commencing at 6.00am and finishing at midday. Each afternoon was spent drinking beer. Despite the evidence contained in a report from Writeway lodged in these proceedings concerning the limited supplies of alcohol, the applicant said that he was able to trade cigarettes with American personnel for virtually unlimited quantities of canned beer.
22. After the applicant was discharged from service he continued to drink heavily. He found employment as a motor mechanic and attended night school. Beer was drunk in pots after work and before school. Alcohol was also consumed in considerable quantities on week-ends in social and other settings.
23. When the applicant was diagnosed with hypertension in 1994, he reduced his alcohol to six to eight beers per day and later when diabetes was diagnosed, he again reduced to two cans of light beer per day which he continues to consume.
24. The exact quantities of alcohol consumed by the applicant have not been recorded by reason of the respondent’s concession as to the quantities satisfying the Statement of Principle. The applicant’s evidence concerning his consumption is consistent with the respondent’s concession.
25. The applicant’s description of his alcohol consumption during service, (except at Cerberus) painted a picture of a person who did consume alcohol in significant quantities on a daily basis. Consumption commenced in the context of peer pressure, a relief from training discipline and the camaraderie of colleagues, all probably experiencing and being subject to the same features of service.
26. Later, when alcohol was consumed in considerable quantities in the Pacific Islands, it no doubt had its association with being a relaxant from the arduous duties of working in a tropical environment, as refreshment and as a relaxant, it being consumed also in the company of other colleagues. That the applicant acquired other produce as a means of trading or bartering for alcohol from American personnel, points to the applicant seeking (and obtaining) alcohol in quantities far greater than were rationed to him by Australian Navy personnel.
27. Attribution by service has been the subject of much analysis both in the Federal Court and in this Tribunal no less than the decision of the Federal Court in Repatriation Commission v Law (1980) 47 FLR 57 where at p68 – 69 the Full Court recorded that service need not be the sole or dominant cause. “It is sufficient to show attributability if the cause is one of a number of causes provided it is a contributing cause”.
28. In Tuite, the veteran sought to connect illness associated by a cigarette habit with his service which was eligible only. However the principles annunciated by it are no less applicable in the present case, being an application concerned with operational service and the consumption of alcohol. As their Honours Burchett and Einfield JJ decided at page 163:
It is true that not everything which occurs while man is in camp is attributable to his war service. But here the circumstances and incidents of camp life were plainly capable of having a causal influence upon the respondent’s decision to take up smoking and upon his continuance in the habit until the inevitable onset of nicotine addiction. It was open to the Tribunal to find the circumstances persuasive. If, in the case of a particular person, one of the inevitable concomitants of war service is camp life, it must be open to the Tribunal to conclude that a consequence (in the sense explained in Repatriation Commission v Law) of camp life is a consequence of war service.
29. I am satisfied and find as a fact that the incidents of the applicant’s service – both initially in training and subsequently – involving “camp life” ‑ did have a causal influence upon his decision to initially commence consuming alcohol and the subsequent consumption. The applicant’s evidence is consistent with the evidence heard by many other veterans, particularly those who worked in the Pacific Islands, of being engaged in heavy physical labour in a hot humid environment. Limited supply of beer was made available by Navy personnel but it was frequently available from other sources and by other means. Boredom was a frequent consequence of service when labour was not being undertaken. Alcohol consumption and cigarette smoking were past times frequently undertaken by veterans, no less the applicant in the present application.
30. I am satisfied on balance that a reasonable hypothesis has been raised connecting hypertension with the circumstances of the applicant’s service. As recorded earlier I am satisfied that the concessions made by the respondent with respect to the quantities of alcohol were properly made.
31. I am not satisfied beyond reasonable doubt that hypertension was not war‑caused. Accordingly the claim must succeed and the decision under review must be set aside. The application is remitted to the respondent for assessment of pension entitlement.
I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior MemberSigned: .....................................................................................
Personal AssistantDates of Hearing 26 October and 16 November 2006
Date of Decision 23 November 2006
Counsel for the Applicant Mr G Moore
Solicitor for the Applicant Williams Winter
Departmental Advocates Mr R Douglass and Mr K Herman
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