Forster and Repatriation Commission
[2014] AATA 91
•25 February 2014
[2014] AATA 91
Division VETERANS' APPEALS DIVISION File Number
2012/3355
Re
Kevin Forster
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Deputy President PE Hack SC
Date 25 February 2014 Place Brisbane The decision under review is affirmed.
..................[Sgd]......................................................
Deputy President PE Hack SC
Catchwords
VETERANS’ AFFAIRS – veterans’ entitlements – abuse suffered during apprenticeship – whether defence caused – posttraumatic stress disorder – whether category 1A stressor – whether a serious physical attack or assault – whether torture – alcohol dependence – severe child abuse – whether senior apprentices ‘care providers’ – whether serious emotional, psychological or sexual harm – clinical onset- hypertension.
LEGISLATION
Veterans' Entitlements Act 1986 (Cth) ss 70(1), 70(5), 120B(3)
Cases
Border v Repatriation Commission (No 2) (2010) 191 FCR 163
Re Robertson & Repatriation Commission [1998] AATA 127Lees v Repatriation Commission (2002) 125 FCR 331
Secondary Materials
Statement of Principles concerning Posttraumatic Stress Disorder No. 6 of 2008
Statement of Principles concerning Posttraumatic Stress Disorder No. 2 of 2009
Revocation and Determination of Statement of Principles concerning Hypertension No. 36 of 2003
Amendment Statement of Principles concerning Hypertension No 12 of 2008
Statement of Principles concerning Hypertension No. 64 of 2013REASONS FOR DECISION
Deputy President PE Hack SC
Introduction
The applicant, Mr Kevin Forster, joined the Australian Regular Army as a junior apprentice in January 1973. He was then some five months short of his 16th birthday. He says that, as a result of abuse and bullying of him that occurred during his training, he now suffers from posttraumatic stress disorder, alcohol dependence and hypertension. He made a claim for a disability pension pursuant to the Veterans' Entitlements Act 1986 (Cth) (the VEA) in respect of those, and other, conditions. The respondent, the Repatriation Commission, rejected his claim so far as it related to these three conditions.
The Commission's decision in relation to the aspect of the claim subject of these proceedings was affirmed by the Veterans' Review Board.
Mr Forster seeks a review of the decision.
For the reasons that follow I have come to the conclusion that the Commission's decision was correct and should be affirmed.
Factual background
Mr Forster served in the Army from January 1973 to November 1978. He commenced his apprenticeship training at the Army Apprentices School at Balcombe, Victoria. He initially commenced training as a radio mechanic however his trade results were so poor that he changed trades to motor mechanic. On arrival at Balcombe he shared quarters with a more senior apprentice however that apprentice’s service with the Army was terminated a short time after Mr Forster's arrival. Mr Forster gave evidence about the abuse and bullying that he says he was subject to whilst at Balcombe. I refer to that evidence in greater detail below.
After completing his trade training as a mechanic Mr Forster was posted to Broadmeadows, Victoria and then to 3RAR, based at Woodside, South Australia. He was ultimately discharged in November 1978 for being absent without leave.
Mr Forster's claim for a disability pension pursuant to the VEA was lodged in May 2011. The disabilities identified in his claim were alcohol abuse/dependence (in remission) (but diagnosed by his medical practitioner as posttraumatic stress disorder), hypertension, atherosclerotic peripheral vascular disease (both legs) and hearing loss with tinnitus. On 21 September 2011 a delegate of the Commission determined that hearing loss and tinnitus were service related but that the other claimed conditions were not. In particular, the delegate determined that the material did not permit a diagnosis of posttraumatic stress disorder.
That decision was reviewed by the Veterans' Review Board. On 7 February 2012 the Board set aside the Commission's decision in relation to atherosclerotic peripheral vascular disease and determined it to be a defence-caused disease. It otherwise affirmed the Commission’s decision regarding hypertension, posttraumatic stress disorder and alcohol dependence (in remission).
The statutory setting
By virtue of s 70(1) of the VEA the Commonwealth is liable to pay a pension by way of compensation to a "member of the Forces" who was incapacitated from a defence-caused injury or a defence-caused disease. There is no doubt that Mr Forster was a member of the Forces. The issue in the present case is whether the conditions which he says affect him are defence-caused injuries or defence-caused diseases. It is sufficient for present purposes to say that the effect of s 70(5) of the VEA is that an injury suffered, or a disease contracted, by a member of the Forces is taken to be a defence-caused injury or a defence-caused disease if,
(a)the… injury or disease, as the case may be, arose out of, or was attributable to, any defence service… of the member.
In determining such questions the Commission (and the Tribunal) is bound to decide matters "to its reasonable satisfaction".[1]
[1]See s 120(4), VEA.
The determination of reasonable satisfaction is dealt with by s 120B(3) in these terms:
(3)In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war‑caused or defence‑caused only if:
(a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b)there is in force:
(i)a Statement of Principles determined under subsection 196B(3) or (12); or
(ii)a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
The Repatriation Medical Authority has promulgated Statements of Principles for each of the three conditions claimed by Mr Forster. I will deal with the precise terms of those Statements of Principles by reference to the particular conditions and the way in which his case was put when considering the particular claims.
Mr Forster’s evidence
Mr Forster provided a detailed statement to the Commission in May 2011[2] and compiled a further statement for the purposes of these proceedings.[3] In addition, he gave oral evidence in the course of the hearing. His evidence, and that of the other witnesses whose statements were tendered,[4] satisfies me that there was what might be described as a culture of bullying at Balcombe during Mr Forster's service there. Senior apprentices, that is, those in the second or third year of service, would routinely bully or harass first-year apprentices. Indeed, in the first few months of Mr Forster's service an incident occurred that led to four senior apprentices being summarily discharged from the Army over an incident that left one junior apprentice in hospital with what a contemporary newspaper report described as "a broken nose and other facial injuries". It is of note that the four discharged apprentices, in another newspaper report, described how they had earlier been treated in a similar manner when they were first-year apprentices.[5]
[2]Exhibit 1, pages 48 – 53.
[3]Exhibit 9.
[4]Exhibits 2, 3, 4 and 5.
[5] Exhibit 8.
The real issue in the present case is the extent to which Mr Forster was the victim of abuse and the extent of it.
I must say at the outset that I have considerable concerns about the reliability of Mr Forster's evidence. One matter, in particular, is concerning. At a time when Mr Forster was in possession of his medical records from the time of his service he had occasion to provide information to his general practitioner to permit that doctor to provide a report supporting Mr Forster's claim that hypertension was defence-caused. He told the doctor that he had a blood pressure of 140/90 at the age of 19. The Army medical record[6] clearly showed 138/78. A diastolic reading of at least equal to 90 mmHg satisfied the clinical definition of hypertension in the hypertension Statement of Principles, a diastolic reading of 78 mmHg did not. Mr Forster's explanation for telling the doctor the higher figures was that "it sounds better".[7]
[6]Exhibit 1, page 15.
[7]Transcript, page 54, lines 40 – 41.
There were other matters that concerned me. In the course of cross-examination, the Commissioner’s representative, Mr Williams asked Mr Forster whether he suffered any injuries during the time of the bullying he alleged. Mr Forster initially answered, non-responsively, by referring to cuts and bruises that "happened to everyone". When pressed for his experience he said he had suffered cuts and bruises. The following passage of evidence is illuminating[8]:
So cuts and bruises? --- Cuts and bruises on several occasions – on more than one occasion.
MR WILLIAMS: And did you report those at all?--- No, Mr Williams.
Did you treat them at all? Did you – did they require treatment?--- They probably required some form of treatment. You'd go to the showers, get a paper towel. As a matter of fact I have a scar over my right eye just to prove it and that should have been stitched.
Okay. Is that the only cut that you point to or that you can recall?--- Yes, Mr Williams. This is the only one that’s visible
Okay. Are there any other that you remember?--- I remember the bruising and a walking and limping for a few days or going to sport and going to stretch and go, "Ouch" and then go, "That's from the other night."
Okay. Did these bruises prevent you from doing your apprenticeship training?--- No, Mr Williams.
It seems to me to be remarkable that Mr Forster had not earlier mentioned this visible scar, particularly in his detailed statement from May 2011. Equally, it seems to be remarkable that Mr Forster claimed that cross-examination was "triggering" further memories of violent incidents, albeit to other apprentices.[9]
[8]Transcript page 50, lines 4-23.
[9]Transcript page 52, lines 3-4 & 43-45.
I am conscious of the need to take into account the difficulties that the passage of time present for Mr Forster[10] however my generally unfavourable impression of him requires me to treat his evidence with some caution.
[10]See s 119(1)(h), Veterans’ Entitlements Act.
Some matters are not in issue. Mr Forster complains, in particular, of events that occurred during the evening in the apprentices’ quarters. Those quarters were huts that accommodated between 10 and 20 apprentices, both junior and senior.[11] It is well established that senior apprentices engaged in practices variously described as "bastardisation" or "hazing". It seems more accurate to describe it as bullying involving physical assaults, with both actual and threatened application of force, and verbal abuse.
[11]The statement of Mr Anthony Bom (exhibit 2) suggests 20 apprentices in each hut; that of Mr Stephen Williams (exhibit 5) suggests 10. For good measure, Mr Forster (transcript, page 27, lines 37-39) puts the figure at 12. The precise number seems not to matter.
Mr Forster’s enlistment date appears to be 18 January 1973.[12] I assume that, or a date very shortly thereafter, to be the date of his arrival at Balcombe. He says that he initially shared a room within a hut with a senior apprentice, a person I shall call F. Mr Forster says of F in his May 2011 statement:
Occasionally he would give me a slap if I became cheeky but most of the time he protected me from senior members who liked to bash and abuse other junior apprentices.
F was one of a number of apprentices who, on about 12 March 1973, assaulted a junior apprentice occasioning a broken nose and other injuries. He was subsequently discharged from the army towards the end of March 1973. It seems from Mr Forster's account that he did not see F after the morning following the incident. This incident had an effect on the misconduct of the senior apprentices. Mr Stephen Williams, who was in the same intake as Mr Forster, recalls an announcement being made on parade that "there would be no tolerance for that behaviour".[13] This, he recalled, "curbed the severe violence" although what he described as "games" and less overt punishments continued all year. Mr Forster did not recall an announcement but did say that the incidents of this nature "slowed right down"[14] and that "things improved dramatically"[15] after the particular incident.
[12]Exhibit 1, page 4.
[13]Exhibit 5, paragraph 11.
[14]Transcript page 35, lines 37 – 38.
[15]Transcript page 56, lines 6 – 7.
So far as Mr Forster is concerned, he complains of a practice where, in the evening, more senior apprentices would come into his room, upend his bed and assault him. His May 2011 statement described the conduct in this way:
This ‘protection’ [by F] didn't occur all the time and quite often other senior members would come into my room and tip my well made bed upside down, sometimes with me in it, throw everything out of my locker, empty tins of foot powder over everything and give me a slap or two for good measure.
…
I have been lying on my bed resting, and a group of senior apprentices, many drunk, would come running in, punch the hell out of me, then go running out. Natural reaction is to crawl in a ball for protection so I would not have a clue who did what and be left full of aches and pains, normally under the bed which had been tipped upside down, thinking who was that and what reason that I get beaten up for?
Mr Forster spoke of being "absolutely terrified"[16] during these incidents which he said occurred to him "at least twice a week" prior to the March 1973 incident[17] and "probably three or four times"[18] thereafter. He complains as well of other conduct falling short of an actual assault. In his May 2011 statement he described this as "verbal and psychological abuse [which] was worse than the physical abuse".[19]
[16]Transcript page 30, line 42.
[17]Transcript page 56, lines 29 – 30.
[18]Transcript page 56, line 40.
[19]Exhibit 1, page 49.
Posttraumatic stress disorder
Posttraumatic stress disorder is dealt with in Statement of Principles No. 6 of 2008. The condition is described in the Statement of Principles by reference to diagnostic criteria derived from the Fourth Edition, Text Revision of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (usually referred to as DSM-IV-TR). The first of those criteria requires that,
(A) the person has been exposed to a traumatic event in which:
(i)the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii)the person’s response involved intense fear, helplessness, or horror;
Mr Forster points to the evidence of Dr Martin Ewer, a consultant psychiatrist, as demonstrating a diagnosis of posttraumatic stress disorder. Dr Ewer makes such a diagnosis in reports of 8 July 2011 and 4 December 2013. The Commission concedes the issue of diagnosis. I have considerable doubt as to the correctness of the diagnosis however in light of my conclusions concerning other aspects of the matter I need not resolve those doubts. I proceed on the assumption that Mr Forster does suffer from posttraumatic stress disorder.
Paragraph 6 of the Statement of Principles identifies the factors that must exist before it can be said that, on the balance of probabilities, posttraumatic stress disorder is connected with the circumstances of a person's relevant service. That in sub-paragraph (a) was relied upon by Mr Forster. It reads,
(a)experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder
The term "a category 1A stressor" is defined in paragraph 9 as meaning,
… one or more of the following severe traumatic events:
(a)experiencing a life-threatening event;
(b)being subject to a serious physical attack or assault including rape and sexual molestation; or
(c)being kidnapped with a weapon, being held captive, being kidnapped, or being tortured;
Mr Forster's contention is that the events involving senior apprentices amounted to a category 1A stressor. It answered that description because Mr Forster was subject to a serious physical attack or assault[20]. Alternatively, the conduct complained of amounted to Mr Forster being tortured.
[20]Mr Piper, the solicitor for Mr Forster, did not suggest that the events could be described as “a life-threatening event”: transcript, page 5, lines 17-8. The concession was correct.
I do not accept either contention.
Much of Mr Forster’s evidence detailed his subjective feelings however, even if I had regarded his evidence as being reliable, I would not regard that evidence as being of assistance in determining whether the matters of which he complains satisfied the definition of a category 1A stressor. In Border v Repatriation Commission (No 2)[21] Reeves J observed that subparagraphs (b) and (c) of the definition “focus on the inherent nature of the events concerned rather than the feelings or emotions engendered by it”. His Honour continued,
Thus, they variously refer to: “a serious, physical attack”, “assault”, “rape”, “sexual molestation”, “being threatened with a weapon”, and “being held captive, being kidnapped or being tortured”. Whilst all of these events would obviously evoke feelings of severe stress, the definition seems to deliberately eschew any such subjective factor as a relevant consideration in determining whether the event falls within the definition.
The subjective response to an event might, in an appropriate case, provide some guide to the objective seriousness of the event but my concerns with the reliability of Mr Forster’s evidence do not allow me to consider his descriptions of his responses to be accurate.
[21][2010] FCA 1430; (2010) 191 FCR 163, 175 at [50].
What is conveyed by the expression "serious physical attack or assault" is to be considered by reference, amongst other things, to the context in which the words appear. That context includes the introductory words "serious traumatic events" as well as the other descriptors within the subparagraphs. I accept, as Mr Piper submitted, that what must be shown is that Mr Forster was subject to a serious physical attack or assault and that it is not necessary to separately demonstrate that the conduct complained off amounted to a severe traumatic event. The presence of those words, however, and the nature of the other descriptors give a sense of the necessary seriousness of the serious physical attack or assault. On the view most favourable to Mr Forster the assaults of which he complains are relatively minor. He refers to cuts and bruises on more than one occasion but they required no treatment and he made no contemporaneous complaint. In his own statement he described the claimed verbal and psychological abuse as being worse that any assaults. I am not satisfied that Mr Forster was subjected to a serious attack or assault whether viewed singly or collectively.
I reach the same conclusion regarding the contention that Mr Forster was subjected to torture. It is the case that Mr Forster was quite young but his description of the nature and frequency of the conduct leaves me well short of being satisfied that it amounted to torture. The word has no special meaning and is to be given its ordinary usage – the infliction of severe bodily pain, frequently, but not necessarily, for the purpose of extracting information from the subject.
Whilst I am prepared to accept that the conduct complained of by Mr Forster occurred prior to the clinical onset of posttraumatic stress disorder, I am not reasonably satisfied that any of the matters complained of by him meet the definition of a category 1A stressor. His claim that posttraumatic stress disorder was defence-caused was correctly rejected.
Alcohol dependence
Mr Forster seems to have over-indulged in alcohol considerably for a number of years but commendably gave up drinking in 1997 on his 40th birthday. Regrettably he has again resumed his consumption of alcohol. In his report of 8 July 2011[22] Dr Ewer made a diagnosis of alcohol dependence (in remission). More recently, and following Mr Forster’s resumption of drinking, he has revised the diagnosis to remove the “in remission” qualification. There is no reason not to accept his diagnosis.
[22]Exhibit 1, page 54.
Statement of Principles No 2 of 2009 deals with alcohol dependence and alcohol abuse. That factors that Mr Forster relies on read,[23]
[23] Statement of Principles No 2 of 2009, clause 6.
The factor that must exist before it can be said that, on the balance of probabilities, alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse is connected with the circumstances of a person’s relevant service is:
(a) …
(b) experiencing a category 1A stressor within the two years before the clinical onset of alcohol dependence or alcohol abuse; or
…
(e)being the recipient of severe childhood abuse within the ten years before the clinical onset of alcohol dependence or alcohol abuse; ..
The expression “category 1A stressor” is defined as it is in the posttraumatic stress disorder Statement of Principles set out above.[24] “Severe childhood abuse” is defined in clause 9 to mean:
(a) serious physical, emotional, psychological or sexual harm whilst a child aged under 16 years; or
(b) neglect involving a serious failure to provide the necessities for health, physical and emotional development, or wellbeing whilst a child aged under 16 years;
where such serious harm or neglect has been perpetrated by a parent, a care provider, an adult who works with or around that child, or any other adult in contact with that child;
[24]See paragraph 22.
The first aspect of Mr Forster’s case is that he experienced a category 1A stressor within the two years before the clinical onset of alcohol dependence. For the same reasons I have given in relation to posttraumatic stress disorder I reject that contention. I do not consider the conduct complained of by him to amount to a category 1A stressor. Moreover, and as I explain below, there is no evidence from which the time of clinical onset could be determined and thus it is impossible to tell whether there was clinical onset in Mr Forster’s case within two years after the conduct complained of by Mr Forster.
Some further details of the evidence need to be recounted to deal with the alternative basis on which this aspect of Mr Forster's case is articulated. According to Mr Forster, apprentices generally received instruction in their various trades during the day. The instructing staff left the Balcombe camp around 4:30 on weekday afternoons and returned at 7 am the following weekday. During their absence the entire camp of some 300 to 400 apprentices was supervised by one duty officer and one non-commissioned officer.[25] Otherwise, it is contended, the senior apprentices were in effect running the camp after hours or, as it was put somewhat colourfully in Mr Piper's opening, "the adults in charge were really letting the lunatics run the asylum".[26]
[25] Transcript page 28, lines 15-35.
[26]Transcript page 17, lines 20-21.
It did not ever emerge with any clarity whether Mr Forster's case was put on the basis of both limbs of the definition of severe childhood abuse. Neglect was certainly relied upon and the argument was put in this way.[27] At least until his 16th birthday in April 1973, and thus for the first three months of his service at Balcombe, Mr Forster was a child. The senior apprentices were care providers. A reasonably safe environment is necessary for the health and physical and emotional development of a child aged under 16 years. An environment in which children are subjected to routine physical assault and emotional bullying is not a reasonably safe one. To the extent the senior apprentices were care providers to junior apprentices under 16 years, they failed to provide a reasonably safe environment by reason of routine physical assaults and emotional bullying of junior apprentices aged under 16 years such as Mr Forster. Alternatively, it is said, the military hierarchy, those above the senior apprentices, were care providers and they too were neglectful in that they placed senior apprentices in charge where those apprentices were inadequately trained or supervised to perform the role.
[27]Supplementary submissions lodged 20 January 2014.
The argument fails at a number of levels. First, it is to be remembered that the issue was whether Mr Forster was the recipient of severe childhood abuse. What might have occurred to others, or what might have been a general pattern of behaviour, is not to the point. But I do not accept that the senior apprentices were care providers. F, who was in Mr Forster's dorm, was described by him as a mentor but he appears not to have had any role in caring for Mr Forster. Neither did the other, more senior, apprentices. The expression "care provider" is not defined. In the context of its use with "parent" and "adult who works with or around that child" and in the context of the matters in paragraphs (a) and (b) of the definition, I take care provider to be a person who has a formal role in the provision of care, exemplified by the necessities for health, physical and emotional development or wellbeing, to the child. The senior apprentices had no such role. They were not required, as the camp hierarchy was, to provide the necessities for health, physical and emotional development, or wellbeing. And, for that reason, they could not fail to provide those necessities to Mr Forster.
The alternative formulation fails because the evidence does not satisfy me that the senior apprentices were placed in charge of the junior apprentices. They had no such role.
Thus I reject Mr Forster's case based upon paragraph (b) of the definition of severe childhood abuse.
If Mr Forster's case relies upon paragraph (a) it too must fail. It requires a conclusion that Mr Forster suffered serious physical, emotional or psychological harm in the few months prior to his 16th birthday. I am not able to reach that conclusion. Mr Foster complains of what were, essentially, minor assaults; on the most favourable view they fall well short of "serious physical…harm". And, whilst he now says that he suffered from psychological abuse, there is no evidence that satisfies me that he suffered serious emotional or psychological harm as a child under the age of 16.
Moreover Mr Forster's case fails on the issue of clinical onset. The factor relied upon requires that Mr Forster was the recipient of severe childhood abuse within the 10 years before the clinical onset of alcohol dependence. The report of Dr Ewer records a history (provided by Mr Forster) of excessive consumption of alcohol commencing during his period of service at Balcombe and attributed by him to his desire to "escape" the claimed assaults. Dr Ewer described the history as "alcohol misuse". But alcohol dependence requires more than excessive consumption or misuse of alcohol. The condition is defined in the Statement of Principles as meaning,
a psychiatric condition that meets the following diagnostic criteria (derived from DSM-IV-TR):
A maladaptive pattern of alcohol use, leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same 12-month period:
(1) Tolerance, as defined by either of the following:
(a)a need for markedly increased amounts of the alcohol to achieve intoxication or desired effect; or
(b)markedly diminished effect with continued use of the same amount of the alcohol.
(2)Withdrawal, as manifested by either of the following:
(a)the characteristic withdrawal syndrome for the alcohol; or
(b)the same (or a closely related) alcohol is taken to relieve or avoid withdrawal symptoms.
(3)The alcohol is often taken in larger amounts or over a longer period than was intended.
(4)There is a persistent desire or unsuccessful efforts to cut down or control alcohol use.
(5)A great deal of time is spent in activities necessary to obtain the alcohol, use the alcohol or recover from its effects.
(6)Important social, occupational, or recreational activities are given up or reduced because of alcohol use.
(7)The alcohol use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by the alcohol (e.g., continued drinking despite recognition that an ulcer was made worse by alcohol consumption).
The Statement of Principles does not define what is meant by clinical onset however it has been generally accepted that,
… there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.[28]
Dr Ewer does not address the time of clinical onset. Elements of some of the symptoms might be able to be teased out of the evidence of Mr Forster if I otherwise regarded him as a reliable historian. I infer, from Dr Ewer’s report of July 2011, that there had been clinical onset by 1997 when Mr Forster ceased drinking. But ultimately what must be demonstrated, and is not, is that there was "clinically significant impairment or distress", manifested by three or more of the symptoms listed in the diagnostic criteria. There is no evidence, beyond Mr Forster’s evidence of excessive consumption of alcohol, that there was clinical onset of alcohol dependence in the ten years after Mr Forster’s experiences in Balcombe in the period from January to April 1973.
[28]Re Robertson & Repatriation Commission [1998] AATA 127 at [23]; see also Lees v Repatriation Commission [2002] FCAFC 398; (2002) 125 FCR 331, 335-6 at [13].
It follows that the decision to reject the claim the alcohol dependence was defence-caused was correct. It will be affirmed.
Hypertension
Statement of Principles No 64 of 2013 deals with this condition. An earlier instrument, Statement of Principles No 36 of 2003 (as amended by Amendment Statement of Principles No 12 of 2008), was in force when Mr Forster made his claim however it is, so far as the present application is concerned, in similar terms to the present instrument and does not require separate consideration. The factor relied on by Mr Forster is clause 6 (b),
…consuming an average of at least 500 g of alcohol per week for at least the six months before the clinical onset of hypertension.
The earlier instrument was in these terms,
…consuming an average of at least 500 g of alcohol per week for a continuous period of at least the six months before the clinical onset of hypertension.
Mr Forster's case confronts two difficulties. The first is that there is no evidence of the date, or the approximate date of clinical onset and no evidence from which that date might reasonably be inferred. Additionally there is no evidence that details the extent of Mr Forster's consumption of alcohol with any degree of particularity.
Hypertension is defined in the current Statement of Principles to mean persistently elevated blood pressure, diagnosed by a medical practitioner and evidenced by, materially for present purposes,
(i)a usual clinic blood pressure reading of greater than or equal to 140 mmHg systolic or greater than or equal to 90 mmHg diastolic, or equivalent levels using a military blood pressure measurement; or
(ii)a usual home blood pressure reading of greater than or equal to 135mmHg systolic or greater than or equal to 85 mmHg diastolic.
The earlier instrument did not differentiate between clinic blood pressures and home blood pressures and required only evidence of the usual blood pressure reading where the systolic reading was greater than or equal to 140 mmHg or whether diastolic reading was greater than or equal to 90 mmHg.
The submissions for Mr Forster pointed to five pieces of evidence. The first was that in October 1972 Mr Forster's medical records indicated a blood pressure reading of 125/85.[29] Next, in September 1976, at a time when Mr Forster was still in the Army, his records indicate a blood pressure of 138/78.[30] Then, in March 2010 Mr Forster had a blood pressure of 160/92.[31] Fourth was Mr Forster’s evidence that he drank heavily until he turned 40 years of age. Finally, there was evidence from Mr Forster that he had attempted, unsuccessfully, to obtain records from hospitals that had treated him over the years but that the passage of time had prevented him from being able to do so. Those matters, it was submitted, allowed me to infer that it was most likely that Mr Forster’s diastolic blood pressure had reached 140 mmHg at some point before 1997 when he stopped drinking. I do not regard that inference as being open even when regard is had to Mr Forster’s evidence of having “always had high blood pressure”.[32] I am left in the position that I cannot determine from the evidence when clinical onset of hypertension occurred.
[29]Exhibit 1, page 18.
[30]Exhibit 1, page 15.
[31]Exhibit 1, page 68.
[32]Transcript page 55, lines 1-2.
Moreover there was an absence of any evidence from which any informed conclusion could be drawn about the extent of Mr Forster’s drinking at any particular time. It appears, at least on his account, to have been excessive however, even had I been satisfied that clinical onset was prior to 1977, the evidence does not allow me to be satisfied that his consumption was, on average, at least 500 grams of alcohol (50 standard alcoholic drinks) per week at any particular time.
It follows that I am not reasonably satisfied that Mr Forster’s hypertension is connected with the circumstances of his Army service and that accordingly I am not reasonably satisfied that his hypertension is a defence-caused disease.
I certify that the preceding 44 (forty -four) paragraphs are a true copy of the reasons for the decision herein of Deputy President PE Hack SC ......................[Sgd]..............................................
Associate
Dated 25 February 2014
Date(s) of hearing 14 October 2013 (Darwin); 9 January 2014 (telephone) Date final submissions received 20 January 2014 Solicitors for the Applicant Pipers Advocate for the Respondent Mr B Williams, Department of Veterans' Affairs
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