Gough and Repatriation Commission

[2008] AATA 1046

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1046

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/5316

VETERANS' APPEALS DIVISION		)
Re		GRAEME GEORGE GOUGH

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms A F Cunningham (Senior Member)

Date21 November 2008

PlaceHobart

Decision

The Tribunal sets aide the decision under review and in substitution therefore decides:  

1. Mr Gough's condition of alcohol abuse is war-caused for the purposes of the Veterans' Entitlements Act 1986

2.    The date of effect is 4 July 2006 

3.  The matter is remitted to the respondent for assessment of rate of    pension

[Sgd Ms A F Cunningham]

Senior Member

CATCHWORDS

VETERANS' ENTITLEMENTS - alcohol abuse - severe stressor event - whether occurred during operational service - decision under review set aside

Veterans' Entitlements Act 1986, ss.5(D), 9(1)(a), 13, 14, 120(1), 120(3), 120(A), 120(A)(3)

Instrument No. 76 of 1998 concerning Alcohol Dependence or Alcohol Abuse

Repatriation Commission and Deledio (1998) 83 FCR 82

Repatriation Commission v Warren (2008) FCAFC 64

Bushell v Repatriation Commission (1992) 175 CLR 408

East v Repatriation Commission (1987) 16 FCR

Bull v Repatriation Commission (2000) 188 ALR 756

Repatriation Commission v Bey (1997) FCA 1347

REASONS FOR DECISION

21 November 2008 Ms A F Cunningham (Senior Member)   

1.      This appeal concerned an event which took place during the applicant's service with the Royal Australian Navy from 25 November 1957 until 28 August 1964.   Mr Gough's service included periods of operational service with the Far East Strategic Reserve and relevant to this appeal, the period from 2 February 1961 to 10 March 1961.  It is Mr Gough's contention that the incident relied on, namely his rescue of a fellow seaman, commenced prior to midnight on 1 February 1961, but continued past midnight into the early hours of 2 February 1961 and thus fell within a period of operational service.

2.      Mr Gough has appealed the decision of the Veterans' Review Board dated 4 October 2007, which found that Mr Gough's condition of alcohol abuse was not attributable to his operational service.  Whilst the VRB accepted that Mr Gough did suffer from alcohol abuse it found that on the evidence considered, the incident upon which Mr Gough relied to support his claim occurred on 1 February 1961, therefore not within a period of operational service.

3.      The Board's finding that Mr Gough suffers from alcohol abuse is not under challenge.  It is conceded by the respondent Repatriation Commission that Mr Gough's condition is correctly diagnosed in accordance with the relevant Statement of Principles in force at the time of the original Commission decision, namely Instrument No. 76 of 1998 concerning Alcohol Dependence or Alcohol Abuse.

4.      Paragraph 2 of the Statement defines alcohol abuse as:

"... the presence of cognitive, behavioural or physiological symptoms indicating the use of alcohol despite significant alcohol-related problems, however these symptoms have never met the criteria for alcohol dependence.  Additionally, signs of tolerance or withdrawal are absent".

5.      The factors that must exist as a minimum before it can be said that a reasonable hypothesis is raised connecting alcohol abuse with the circumstances of service are contained in paragraph 5.  The factor relied upon relevant to Mr Gough's service is factor 5(b):

"Experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse ..."

6.      The term "experiencing a severe stressor" is defined in paragraph 8 as:

"... 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".

The Incident:

7.      It was Mr Gough's evidence that on 1 and 2 February 1961 he was serving on HMAS Quickmatch which was tied up at the port of Labuan in Borneo.  On the evening of 1 February 1961 he was the quartermaster on HMAS Quickmatch.  He was due to hand over the role at midnight.  He was in the "cubby house" which contained the intercom for the ship and a large clock which was set on local time.  He recalled looking at the clock at approximately 11.50 pm on the evening of 1 February 1961 when an alarm was raised.  He went on deck.  He heard splashing and saw that there was a person in the water.  HMAS Quickmatch was tied up to the wharf but without buffers.  Prior to diving into the water to rescue the man he instructed the bosons mate to seek help.  Mr Gough struggled with the man in the water who initially resisted his attempts to assist him and attempted to drag Mr Gough under water.  Whilst struggling with the man in the water, Mr Gough's right leg was caught between HMAS Quickmatch and the piles at the wharf which caused a number of lacerations.  Mr Gough managed to overpower the man and both of them were returned to the ship by manual lift. 

8.      Mr Gough estimated that he was in the water for approximately thirty minutes.  He subsequently learned that the man was a sailor who may have been attempting suicide.  After returning to HMAS Quickmatch, the ship's medical officer sutured the lacerations to Mr Gough's right leg which he estimated required between 100 and 150 sutures.  He believed that the procedure took a couple of hours and that the lacerations were caused by barnacles on the piles on the wharf.  Mr Gough stated that following the incident he felt agitated and distressed and would wake at night thinking of the incident.  Seeing the scars on his leg also brings back memories of the incident.

9.      Mr Gough's account of the incident as outlined above was contained in his proof of evidence which was tendered at the hearing. 

10.     It is conceded that the event as described by Mr Gough meets the definition of experiencing a "severe stressor" as defined in paragraph 8 of Instrument 76 of 1998.  The Tribunal accepts Mr Gough's description of the event and that it constituted a "severe stressor" as defined.  It is contended by the respondent however that the contemporaneous documentary evidence records that this event occurred on 1 February 1961 and therefore did not constitute operational service which commenced on 2 February 1961.  Further, the respondent submits that the available medical evidence tends to support a finding that the clinical onset of alcohol abuse did not occur within the requisite two year period after the alleged stressor.

Legislation:

11. Mr Gough's claim is made pursuant to section 14 of the Veterans' Entitlements Act 1986 (the VE Act) on the basis of the eligibility provisions of section 13 that he has become incapacitated from a war-caused disease. It is conceded by the respondent that Mr Gough's alcohol abuse meets the definition of "disease" as contained in section 5(D) of the VE Act. 

12. Section 9(1)(a) of the VE Act provides:

"(1)     Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:

(a)       the injury suffered, or disease contracted, by the veteran resulted from                an occurrence that happened while the veteran was rendering   operational service"

13. As the claim relates to a period of operational service, the applicable standard of proof as dictated by section 120(1) of the VE Act is that an injury is to be accepted as war-caused unless the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for making a determination.  Section 120(3) provides that the Tribunal shall be satisfied beyond doubt that there is no ground for determining the disease was war-caused if after considering the whole of the material before it, it is of the opinion that the material does not raise a reasonable hypothesis connecting the disease with the circumstances of the applicant's service. 

14. Section 120(A) of the VE Act provides that the reasonableness of a hypothesis is to be assessed by reference to any applicable Statement of Principles. As the claim was made after 1 June 1994, section 120(A)(3) of the VE Act applies which states that a hypothesis connecting a disease with the circumstances of any particular service is reasonable only if there is in force a Statement of Principles (SOP) that upholds the hypothesis.  

Consideration and findings:

15. The four step process that has been adopted in the application of sections 120(1),(2) and (3) was set out by the Full Court in Repatriation Commission and Deledio (1998) 83 FCR 82 at page 97 as follows:

"1.       The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.

2.     If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

3.     If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.

4.     The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in

(1998) 83 FCR 82 at 98

the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved".

16.     The Full Court of the Federal Court in Repatriation Commission v Bey (1997) FCA 1347 summarised the four step process as follows:

“The method of applying s120(1) and (3) is now well established:

1. One commences with subs (3). The first step is to identify the hypothesis said to establish the causal link between the veteran's eligible war service and the death, injury or disease. Identifying the hypothesis is a question of fact.

2. The second step under subs(3) is to determine whether the hypothesis is reasonable. The material will raise a reasonable hypothesis if it points to some fact or facts which support the hypothesis (the `raised facts') and if the hypothesis can be regarded as reasonable assuming the raised facts to be true. In determining whether the hypothesis is reasonable the decision maker must identify the facts said to point to it.

3. Whether a hypothesis is reasonable is a question of fact. The decision maker must be satisfied that the hypothesis is reasonable after considering the whole of the material. Proof of facts and onus of proof are not in issue at this point.

4. If the decision maker concludes that the material raises a reasonable hypothesis, the third step is reached. Subsection (1) must be applied, and the claim will succeed unless one or more of the facts necessary to support another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.

In some cases the hypothesis may assume the occurrence or existence of a `fact'. That itself does not make the hypothesis unreasonable: Byrnes at 570 and Critch v Repatriation Commission (1996) 43 ALD 574 at 577."

17.     The condition relied upon is that of alcohol abuse.  The diagnostic criteria for the condition as specified in DSM-IV are included in the Statement of Principles as follows:

"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 alcohol to achieve                  intoxication or desired effect

(b)       markedly diminished effect with continued use of the same   amount of alcohol

...

(3)       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"

18.     Dr Ratcliff reported on 6 March 2007:

"After my last examination of him I concluded that a past diagnosis of Alcohol Abuse, but not dependence would be tenable.  On the basis of the history now obtained, he undoubtedly meets DSM-IV criteria for a diagnosis of alcohol abuse, although he describes tremors before the first drink in the morning.  On specific interrogation he now indicates that he drinks only during the hours from 10.00 am till 5.00 pm, a pattern which would be highly unlikely if alcohol dependence had developed.  The daily drinking pattern would appear to have developed early in his naval service, and may have been exacerbated following the incident which he described.  The dating of this and of disciplinary charges relating to alcohol would be useful".

19.     Dr Ratcliff in his evidence to the Tribunal also referred to the social and legal impacts of Mr Gough's drinking habits, namely marital difficulties with his first wife, the loss of his driving licence on three occasions, the pattern of excessive drinking on occasions, particularly after hours and on the weekends. 

20.     The Tribunal accepts Dr Ratcliff's evidence and his diagnosis of alcohol abuse.  The Full Court of the Federal Court in its decision Repatriation Commission v Warren (2008) FCAFC 64 upheld the decision of the Tribunal that it was entitled to act on a concession without independently satisfying itself that the criteria were met. The respondent in this case has accepted the diagnosis of alcohol abuse.

21.     The claimed hypothesis is that Mr Gough's alcohol abuse results from or was contributed to by the severe stressor event which occurred during his operational service.  The next question for the Tribunal to determine is whether the hypothesis can be regarded as reasonable.  At this stage of the enquiry the Tribunal is required to consider the whole of the material before it and identify the facts that support the hypothesis without determining the validity of those facts but assuming the raised facts are true. 

22.     The High Court in the decision Bushell v Repatriation Commission (1992) 175 CLR 408 stated at 414:

“The material will raise a reasonable hypothesis within the meaning of s120(3) if the material points to some fact or facts (“the raised facts”) which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true"..  

23.     The third step in the Deledio enquiry is to determine whether the material before the Tribunal is capable of supporting the hypothesis.  For a hypothesis to be reasonable it must be more than a mere possibility and must be pointed to by the facts without the Tribunal being required to make any findings with respect to the facts. 

24.     The Federal Court in its decision East v Repatriation Commission (1987) 16 FCR at 533 stated that:

“… A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts.   It is an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities.”

25.     The following observation was made by Emmett and Allsop JJ in the decision Bull v Repatriation Commission (2000) 188 ALR 756 at 761:

“It is important to understand the following about East. The Court said that an hypothesis is not reasonable if it is obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous. However, the Full Court did not say that if an hypothesis was not obviously fanciful or not impossible, or not incredible or tenable or not too remote or not too tenuous, it was therefore necessarily reasonable. The material must point to the connecting hypothesis. …

There is no doubt that the Tribunal is obliged to look at all the material, not just some of it.”

26.     In his report of 16 January 2006 Dr Ratcliff stated:

"A non-drinker on enlistment at the age of seventeen he developed a pattern of intermittent excess typical of young sailors when on shore.  He appears to have had an increase in his alcohol consumption following the traumatic incident at Labuan.  His current alcohol consumption would be at the upper limit of normal for a healthy man but is excessive for a suffer from epilepsy and hypertension"

The DSM-IV criteria for alcohol abuse do not include those cases where the use of alcohol is at a level that exacerbates another illness or impairs treatment.  All of the criteria relate to impairment of social behaviour.  Mr Gough's use of alcohol during naval service contributed to disciplinary problems in the service, and isolated episodes of high alcohol consumption led to a drink-driving charge lost him his last and valued job.  He denies that the level of alcohol intake on that occasion was usual".

27.     Further in the same report in conclusion Dr Ratcliff stated:

"It would appear reasonably certain that in the past he would have met the criteria in DSM-IV for a diagnosis of Alcohol Abuse but not of Alcohol Dependence.  The level of abuse would appear to have been characteristic of his peer group, but at one stage reportedly exacerbated by a single traumatic incident during service with Far Eastern Strategic Reserve but not occurring in hostile waters.  His past alcohol intake would appear to have been sufficient to contribute to the development of hypertension with increased risk of stroke.  A chain of causation can be established from episodic excessive drinking and smoking commencing during service.  His use of alcohol is now considerably mitigated by his physical condition and his treatment".

28.     Mr Gough's statement of evidence also includes reference to an increase in his drinking following the rescue incident.  Mr Gough said that prior to the incident he only drank alcohol occasionally but following the incident he began drinking more heavily.  He stated that:

"I drank daily and would drink until I was drunk if there was enough alcohol available.

I continued to drink heavily until the 1990's when I reduced by level of alcohol consumption on the advice of doctors due to other medical conditions.

In the late 1990's I recommenced drinking heavily and have continued to drink heavily ever since".

29.     Dr Holwill, psychiatrist, prepared a report for the Commonwealth Department of Veterans' Affairs on 1 June 2001.  In the history of injury as reported by Mr Gough Dr Holwill started that:

"Prior to this incident, he had been drinking only occasionally.  He commenced drinking alcohol during his service in the Far East.  Following the incident with the man diving overboard, he began drinking daily, and often to the point of inebriation when sufficient alcohol was available. 

He continued drinking like this for many months.  His alcohol consumption then decreased, but he continued drinking moderately heavily until the mid 1990's.  He told me on average that he would drink about five full strength beers per day, most days of the week".

30.     Dr Holwill considered that the subject incident would constitute a severe stressor as defined and certainly gave rise to an increase in his tobacco and alcohol consumption. 

31.     It was contended on behalf of the respondent that the Tribunal could not be satisfied that the clinical onset of Mr Gough's alcohol abuse occurred within two years of his experiencing the incident which constituted the severe stressor.  It was submitted that although it has been the applicant's contention, as confirmed by his evidence, and his "Veteran Alcohol Statement" completed on 25/1/2001 that he commenced a heavy alcohol habit in 1961 following the severe stressor event, he provided a different history to his treating medical practitioners as recorded by Dr Martin, treating psychiatrist, in 1995 and Dr Baty, treating GP in 1994.  In his evidence to the Tribunal Mr Gough disputed the doctors records and contended that he had understated his alcohol consumption because of the doctors views on the impact of drinking on his health. 

32.     The Tribunal is not required at this stage to assess the weight of the evidence and make any determination as to the facts.  The question is whether the evidence supports the hypothesis and whether it could be regarded as reasonable if the facts raised are true (see Bushell v Repatriation Commission supra at 414). In the Tribunal's view there is sufficient material as outlined above to support the hypothesis that Mr Gough's alcohol abuse commenced within two years of him having experienced the severe stressor event which occurred during a period of operational service.

33.     The fourth step requires the Tribunal to be satisfied beyond reasonable doubt that Mr Gough's alcohol abuse was not war-caused.  This is effectively a reverse standard of proof. 

34.     It was submitted by the respondent that the Tribunal could not be satisfied that the severe stressor event occurred during operational service.  The respondent relies on an extract from the "D. Book" for HMAS Quickmatch which recorded that on 1/2/61 Graeme George Gough aged 20, Rank AB sustained lacerations to his right leg "by diving into water this pm, right sutured". 

35.     Despite the fact that there was a copy of the Extract in the T Documents, the document was not put to Mr Gough neither by his own counsel or the respondent's counsel, to afford him the opportunity for comment.  Nor was the author of the document called to authenticate the record or provide any evidence in support.   It is curious that the record of the incident is so brief and contains no reference to a rescue. 

36.     In his evidence to the Tribunal Mr Gough was fairly precise in his recollection of having looked at the clock in the watch house at around ten minutes to midnight before diving into the water to rescue the sailor.  He estimated that he was in the water for some twenty minutes and that the suturing took some two hours.   Mr Gough's account of the incident has been repeated on several occasions to various doctors and other authorities in a fairly consistent way and without any significant variations.

37.     Mr Gough was not extensively questioned as to his recollection of the rescue incident during his evidence to this Tribunal but he was adamant that the alarm was first raised at 23.50, just prior to him ceasing his watch.   He said that he is reminded on a daily basis about the incident when he has a shower and sees the scars on his legs.  He said that he "can remember everything about that night". 

38.     In his report of 21 October 1997, Dr Maclaine-Cross in his letter to Dr Prall stated "as you say he is not a good historian and I was very grateful to have your summary of events so far".  Further on in the letter he stated that Mr Gough "was rational and showed quite a good memory of events". 

39.     Dr Holwill had reported on 1 June 2001 that Mr Gough was vague and highly distractable and quite unable to chronologically sequence a history.  Further, that he volunteered little and struggled to recall dates or even the correct ages of his children.  Dr Holwill said it was evident that there was considerable patchy memory loss although he was correctly orientated in time, place and person.  He noted that Mr Gough's immediate and short-term memories were grossly intact.

40.     Dr Ratcliff in his evidence to the Tribunal suggested that Mr Gough's memory difficulties related more to his short-term memory.  After observing Mr Gough in the witness box during the course of the hearing, Dr Ratcliff agreed that there was apparent memory loss relating to matters of the 1990's and his recall of events was less continuous than the history he had previously provided Dr Ratcliff.  Dr Ratcliff said that memory loss can be attributable to a number of factors, for instance, medication, the effect of epilepsy, recent intoxication and the strokes that Mr Gough had suffered.  It is noted that there is also a history of depression. 

41.     The issue as to Mr Gough's memory loss was raised with respect to his historical account of his drinking patterns rather than his account of the rescue incident which as stated above, was specific as to time, place and date and consistently reported.  Against this the only other evidence is the very brief record by an unknown person that the diving incident and suturing occurred on 1 February 1961.  The Writeway Research Service Pty Ltd Report dated 11 March 2008 states that there are no incidents involving the recovery of a man overboard from HMAS Quickmatch or the wharf recorded in the Reports of Proceedings (ROP) during the relevant period when the ship was in harbour.  The Report states that despite extensive efforts of contacting several other Defence agencies, copies of the relevant Quickmatch logs could not be located.  It is notable that the ROP had recorded however that a cocktail party had been given on board for 75 people, that several sporting fixtures where arranged and tours of the island. 

42.     Despite the absence of records relating to the rescue event, the fact that it had occurred was not in dispute at the appeal hearing.  It was submitted on behalf of the respondent that the Tribunal should find however, that the event occurred on the 1 February 1961 rather than 2 February 1961 on the basis of the extract from the "D Book".  This record is notably brief, does not even refer to a rescue by Mr Gough and there are apparently no other records of the event.  The Tribunal finds the documentary material unreliable and accordingly places little weight on the extract.  The Tribunal prefers the consistent and detailed account of the event as relayed by Mr Gough. 

43.     The remaining issue is whether the clinical onset of Mr Gough's alcohol abuse occurred within two years of the rescue incident.  Again the Tribunal needs to be satisfied beyond reasonable doubt that it did not in order for the claim to be rejected.

44.     It was submitted on behalf of the respondent that Mr Gough had provided a different history of his alcohol consumption to Drs Martin, Baty and Maclaine-Cross than that provided to Drs Ratcliff and Holwill as outlined above.  For instance, Dr Martin had recorded in November 1995 that Mr Gough's alcohol consumption ranged from no drink for three weeks and drinking very little.  In 1994 Dr Baty, his treating GP, had recorded that Mr Gough was drinking three stubbies per day, in August 1994 he was "off alcohol" and on 21 September 1995 "not drinking alcohol".  On 2 October 2006 he recorded an "excessive alcohol intake - increasing over last 20 months".  Dr Maclaine-Cross (treating physician) recorded on 21 October 1997 that Mr Gough was "drinking four to five beers two or three days a week".

45.     The Tribunal accepts as plausible, Mr Gough's explanation that he had under-stated his alcohol intake because of the concerns raised by his doctors.  These records do not relate to the period in question, namely, from February 1961 to February 1963.  There is no independent account of Mr Gough's alcohol consumption for this period and the only evidence is that of Mr Gough himself and what he reported to Dr Ratcliff and Dr Holwill as recorded in paragraphs 26 and 29 above. 

46.     There is evidence that Mr Gough's alcohol consumption fluctuated during the 1990's due to his health problems and in particular, stroke episodes and epilepsy.  Dr Ratcliff said this pattern is consistent with the condition and the person's ability to increase or decrease consumption according to circumstances.  When Dr Ratcliff was questioned as to how Mr Gough was able to reduce or moderate his alcohol consumption from time to time, for instance, he did not consume alcohol during work duties, Dr Ratcliff said this is consistent with alcohol abuse rather than a diagnosis of alcohol dependence. 

47.     Dr Ratcliff stated that if Mr Gough's account of the rescue incident is accepted, he would have expected the clinical onset of alcohol abuse to have occurred within a few months of the event.  The social effects referred to by Dr Ratcliff included matrimonial strife and issues of compliance with the law. 

48.     The various accounts of Mr Gough's alcohol consumption were put to Dr Ratcliff who maintained his diagnosis of alcohol abuse and opinion that if Mr Gough's account of the rescue incident is accepted, it would in his opinion, amount to a severe stressor and that Mr Gough's account of his increased alcohol intake soon after the event would be acceptable.

49.     Dr Ratcliff further agreed that even if Mr Gough had commenced drinking prior to the severe stressor event, it would be reasonable to accept that his alcohol consumption had significantly increased as a result of the incident. 

Conclusion:

50.     As outlined above, the Tribunal accepts and prefers the evidence of Mr Gough with respect to the circumstances of the rescue incident.  In particular that it commenced prior to midnight on 1 February 1961 and continued into the early hours of 2 February 1961.  The Tribunal is accordingly satisfied that the rescue incident, which constituted a severe stressor event, occurred during operational service. 

51.     The Tribunal is also satisfied on the basis of Mr Gough's own evidence and that contained in Dr Holwill's and Dr Ratcliff's written reports and confirmed by Dr Ratcliff in his oral evidence to the Tribunal, that the severe stressor event gave rise to Mr Gough's increased alcohol consumption.  Whilst there is reported evidence that Mr Gough's alcohol consumption may have reduced during the 1990's, this appears to be largely due to health issues and as Dr Ratcliff stated, is consistent with the condition.  There is evidence before the Tribunal supporting a finding that the clinical onset of Mr Gough's alcohol abuse occurred within two years of the severe stressor event which the Tribunal accepts. 

52. The Tribunal is accordingly not satisfied beyond reasonable doubt that the clinical onset of Mr Gough's alcohol abuse did not occur within two years of his experiencing a severe stressor event. The provisions of section 120(1) of the VE Act direct the Tribunal to a finding that Mr Gough's condition of alcohol abuse is war-caused.

53.     The order of the Tribunal is that the decision under review be set aside and substituted with the decision that Mr Gough's condition of alcohol abuse is war-caused with effect from 4 July 2006.

I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member)

Signed: 
                 R Hunt (Administrative Assistant)

Date/s of Hearing  29 September 2008
Date of Decision  21 November 2008
Counsel for the Applicant               Mr R Benson
Solicitor for the Applicant               Dobson Mitchell & Allport
Counsel for the Respondent          Mr R Douglass
Solicitor for the Respondent          Department of Veterans' Affairs Advocacy   Section