Fullerton and Repatriation Commission (Veterans' entitlements)
[2025] ARTA 746
•12 June 2025
Fullerton and Repatriation Commission (Veterans' entitlements) [2025] ARTA 746 (12 June 2025)
Applicant/s: Colin Fullerton
Respondent: Repatriation Commission
Tribunal Number: 2022/8142
Tribunal:Senior Member George
Place:Darwin
Date:12 June 2025
Decision:The Tribunal affirms the decision under review.
Statement made on 12 June 2025 at 4:21pm
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Senior Member George
Catchwords
Claim for acceptance of liability – cardiomyopathy – defence service – whether defence caused – decision under review affirmed.
Legislation
Veterans’ Entitlements Act 1986
Statements of Principles
Statement of Principles concerning Cardiomyopathy No. 58 of 2024
Statement of Reasons
Mr Fullerton was a soldier. He enlisted in the Australian Regular Army on 18 January 1972 and was allocated to the Australian Army Catering Corps. Six years later, on 19 January 1978, Mr Fullerton discharged as a Corporal. He had served in the 2nd Battalion, Royal Australian Regiment (‘2RAR’); 16th Air Defence Regiment; and 2nd Field Survey Squadron. After subsequently working as prison officer, Mr Fullerton retired in 2017.
In January 2020, Mr Fullerton made a claim for acceptance of liability for cardiomyopathy based on “a culture of excessive drinking during service” that continued post-discharge.[1] The Respondent refused this claim in July 2021 as it was reasonably satisfied that Mr Fullerton’s cardiomyopathy was not related to his eligible defence service. The Respondent reasoned that Mr Fullerton’s excessive alcohol consumption was a personal choice and was not “reasonably required, expected or authorised by the ADF in order for you to carry out your duties”. Mr Fullerton exercised his right of appeal to the Veterans’ Review Board.
[1] A claim for osteoarthritis was not pressed at the hearing on 13 May 2025 and is therefore not further considered.
In July 2022, the Board affirmed the Respondent’s decision. At paragraphs [32]-[33], the Board was not satisfied that Mr Fullerton’s alcohol consumption was connected to his service as he had a well-established pattern of drinking prior to both his enlistment in January 1972 and the commencement of the Veterans’ Entitlements Act 1986 (the Act) in December 1972. The Board was not satisfied that Mr Fullerton’s alcohol consumption varied appreciably during his Army service.
The issues for the Tribunal are accurately set out in paragraph [3.1] of the Respondent’s Statement of Facts, Issues and Contentions. Establishing the standard of proof in section 120B of the Act and relevance of the Statement of Principles concerning Cardiomyopathy (Balance of Probabilities) No. 58 of 2024 are uncontentious. It is also uncontentious that Mr Fullerton’s service from 7 December 1972 to 19 January 1978 is ‘defence service’ within the meaning of section 68 of the Act and that he will be eligible for a pension under section 70(1) of the Act for any defence-caused injury or disease.
They remaining questions are:
(a)What is the correct diagnosis, and date of onset, of Mr Fullerton’s claimed condition?
(b)Is the standard of proof satisfied?
MATERIAL FACTS
Mr Fullerton provided statements, but did not appear for cross-examination at the hearing. Mr Fullerton also notably provided an alcohol questionnaire dated 18 February 2024.
The substance of Mr Fullerton’s evidence is that there was a culture of excessive drinking during his military service. In his alcohol questionnaire, Mr Fullerton stated that he drank prior to his military service but not to excess. His drinking increased significantly after his training was completed and there was a culture of heavy drinking at 2RAR, in which Mr Fullerton became a participant. By October 1972, Mr Fullerton was drinking 6-8 beers per day and 3-4 spirits. This then increased when Mr Fullerton deployed to Singapore. Alcohol was freely available. By 1973, Mr Fullerton was drinking a bottle of spirits a day.
Mr Fullerton was medically evacuated from Singapore to Adelaide in December 1973 due to alcoholic gastritis. He was treated at Daw Park Repatriation Hospital.
Mr Fullerton’s evidence is that he served for six months on Operation Cendrawasih in Biak in 1976. He was a heavy drinker during this time. He was generally anxious and nervous, and he had worsening reflux issues. He recalls a fatal non-military helicopter crash that affected the Biak camp. This did not help his drinking issues.
Mr Fullerton finally quit alcohol in 1985. He had an operation in 1999 to rectify his reflux issues.
Professor Gutman, a cardiologist, was engaged by the Respondent to review Mr Fullerton. Professor Gutman did so and provided two reports. The substantive report was dated 26 September 2023, and a supplementary report was dated 28 March 2025. Professor Gutman did not appear at the hearing.
Having reviewed Mr Fullerton’s medical history, Professor Gutman’s opinion is that Mr Fullerton suffers from familial hypertrophic cardiomyopathy. Professor Gutman gave the date of onset as between 2006 and 2007, due to a family screening echocardiogram. Professor Gutman regards Mr Fullerton as being genetically predisposed to hypertrophic cardiomyopathy and regards Mr Fullerton’s cardiomyopathy to have followed the expected pathway for this condition.
Professor Gutman rejects alcohol consumption as a cause of hypertrophic cardiomyopathy. At paragraph [4.9] of his 26 September 2023 report, Professor Gutman opined “No matter how much Mr Fullerton was drinking alcohol at the time, it would not be the causative agent for his hypertrophic cardiomyopathy”. Professor Gutman reiterated this at paragraph [4.2] of his 28 March 2025 report when he wrote: “Excessive alcohol consumption does not cause hypertrophic cardiomyopathy, so there is no relevance to alcohol consumption and the development of hypertrophic cardiomyopathy”.
CONSIDERATION
What is the correct diagnosis, and date of onset, of Mr Fullerton’s claimed condition?
Having regard to the Applicant’s Briefing letter to Dr Karen Teo of 11 April 2024, and the Respondent’s Statement of Facts, Issues and Contentions at paragraph [4.6], it is uncontentious that Mr Fullerton suffers from hypertrophic cardiomyopathy.
The Tribunal has examined Professor Gutman’s reports and the extensive hospital medical records that form the body of the evidence. Cardiomyopathy clearly runs in Mr Fullerton’s family, as identified by Dr Ingamells in May 2008. The Tribunal is reasonably satisfied from this evidence that the date of onset of Mr Fullerton’s hypertrophic cardiomyopathy is May 2008.
Conclusion:
The correct diagnosis of Mr Fullerton’s claimed condition is hypertrophic cardiomyopathy. The date of onset is May 2008.
Is the standard of proof satisfied?
Paragraph 7(2)(b)(iv) of the relevant SOP includes hypertrophic cardiomyopathy as a form of cardiomyopathy. Under paragraph 9, before it can be said, on the balance of probabilities, that Mr Fullerton’s cardiomyopathy is connected with the circumstances of his relevant service, factor 17 must exist, which is:
for males only, consuming an average of at least 80 grams of alcohol per day for a continuous period of at least 5 years, before clinical onset or clinical worsening;
Note: Alcohol consumption is calculated utilising the Australian Standard of 10 grams of alcohol per standard alcoholic drink.
To this extent, the relevant SOP produced by the Repatriation Medical Authority and Professor Gutman’s opinion regarding alcohol’s causative effects of hypertrophic cardiomyopathy are in direct contradiction. Given the SOP’s standing as a legislative instrument, the Tribunal prefers the SOP to the Professor’s opinion.
The Respondent has made submissions regarding Mr Fullerton’s pre-enlistment drinking and the period of ‘defence service’ within the meaning of section 68 of the Act. Despite these submissions, the Tribunal is reasonably satisfied that from December 1972 for at least five years that Mr Fullerton was drinking an average of at least 80 grams of alcohol per day. Indeed, the evidence suggests he was drinking far more than this amount.
The issue for Mr Fullerton is that, on the evidence available to the Tribunal, the exact service connection between Mr Fullerton’s drinking and his duties are unclear.
The Tribunal accepts that, as a matter of historical fact, Australian service life has incorporated aspects of a heavy drinking culture. Were that not the case, many well-publicised cultural reforms made over the last two decades would have been unnecessary. Furthermore, the Tribunal accepts Mr Fullerton’s evidence of a heavy drinking culture in the ranks of 2RAR in the mid-1970s. Similarly, the Tribunal accepts that the helicopter crash did not help Mr Fullerton’s already well-established drinking issues.
The issue for Mr Fullerton is that there is no objective evidence that he was expected to consume alcohol as part of his duties in the Australian Army Catering Corps, or as a part of any unit. That alcohol was freely available, particularly in the catering corps, is not in doubt. The Tribunal also accepts that there would have been peer pressure in the ranks to drink. However, noting Mr Fullerton’s hospitalisation, it is not clear that peer pressure extended to the quantity and duration of alcohol that he consumed.
Various case law has been placed before the Tribunal, but the effect of paragraph 9 is unambiguous that Mr Fullerton’s alcohol consumption in factor 17 must be connected with the circumstances of his relevant service. This is not established on facts before the Tribunal.
Conclusion:
The Tribunal is not satisfied that Mr Fullerton’s consumption of an average of at least 80 grams of alcohol per day for a continuous period of at least 5 years, before the clinical onset of his cardiomyopathy, was connected with the circumstances of his eligible defence service.
CONCLUSION
Liability for Mr Fullerton’s cardiomyopathy cannot be accepted based on the findings made above. The decision under review must therefore be affirmed.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 26 (twenty-six)
paragraphs are a true copy of the
reasons for the decision herein
of Senior Member George.............................................................
Associate
Date of Hearing: 13 May 2025 Representation for the Applicant: Mr Ray Duthie Solicitor for the Respondent: Sparke Helmore
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