Gwenyth Cairns and Repatriation Commission
[2013] AATA 742
•15 October 2013
[2013] AATA 742
Division Veterans' Appeals Division File Number
2012/3826
Re
Gwenyth Cairns
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Dr M Denovan, MemberDate 15 October 2013 Place Brisbane The decision under review is affirmed.
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Senior Member Bernard J McCabe
CATCHWORDS
VETERANS' AFFAIRS – Pensions and benefits – Widow's pension – Connection between kind of death and service – Cerebrovascular disease – Link between alcohol consumption and service – Level of alcohol consumption – Decision under review affirmed
LEGISLATION
Veterans’ Entitlement Act 1986
CASES
Bull v Repatriation Commission [2001] FCA 1832
SECONDARY MATERIALS
Statement of Principles concerning Cerebrovascular Accident No. 51 of 2006
Statement of Principles concerning Vascular Dementia No. 21 of 2006, No. 63 of 2006, No. 61 of 2010
REASONS FOR DECISION
Senior Member Bernard J McCabe
Dr M Denovan, Member
The applicant in these proceedings is the widow of Mr George Struthers Cairns. Mr Cairns served in the RAAF in the final days of World War II. He was diagnosed with vascular dementia in 1999 and died on 20 October 2011. Mrs Cairns said the veteran’s death was linked to his service in the RAAF. She applied for the widow’s pension under the Veterans’ Entitlement Act 1986 on that basis.
The parties agreed at the outset of the hearing that the kind of death suffered by the veteran was vascular dementia. We must now decide whether there is a connection between the veteran’s kind of death (ie, vascular dementia) and his operational service during the war.
Mrs Cairns’s case can be outlined as follows. Mr Cairns trained as a tail-gunner for the B-24 bomber at the end of the war. He served in Darwin and in the Pacific, amongst other places. The B-24 had a poor safety record, quite apart from the risks associated with flying an explosive-laden aircraft over enemy territory – albeit that the enemy had become less effective by that point in the war. It follows his service must have been stressful, even though there is no specific evidence of the veteran experiencing a stressful or life-threatening event. At about the same time the veteran began to drink regularly and moderately heavily. He had just turned 18 when he joined up, so it not altogether surprising that he did not have a history of alcohol consumption before service. Mrs Cairns said a pattern of heavier-than-desirable alcohol use was established once her late husband was in the RAAF, and that pattern persisted for most of his life. Mrs Cairns did not meet the veteran until 1959, and they married in 1960. She did not have direct knowledge of the veteran’s drinking habits in the period between the war and the time they met, although she said he drank on most days with work colleagues and clients. She agreed he moderated his drinking after they married and had children, so that he mostly drank only on Fridays and weekends or in connection with social or sporting events or at work events where he was expected to entertain clients. She said the amount he drank on a weekend was affected by what transpired that weekend: he might drink more if he enjoyed success in his golf game, for example. She did not describe a maladaptive pattern of alcohol use in the time she knew him. There is no evidence Mr Cairns consumed alcohol in response to stress, or to self-medicate. He was able to moderate his drinking and did not experience any adverse life consequences like drink-driving offences or domestic difficulties associated with drunken or violent behaviour.
Mrs Cairns said her late husband did not speak much of his experience during the war. He certainly never explicitly suggested to Mrs Cairns that he began drinking because of the war (or more accurately, in response to events that occurred during the war, or in response to other circumstances of his war service). She did not give any evidence that he would speak of the war when he was affected by alcohol. Even so, the applicant said the veteran’s pattern of excessive alcohol consumption is explained by his war service, and contributed to the onset of cerebrovascular disease. Cerebrovascular disease is a factor in the onset of vascular dementia.
There is no Statement of Principles in relation to cerebrovascular disease, although there is one in relation to vascular dementia (No. 21 of 2006, as amended by No. 63 of 2006 and No. 61 of 2010). There is a Statement of Principles (SoP) in relation to cerebrovascular accident (No. 51 of 2006), but the applicant did not press a case on that basis: there was some evidence in the radiological imaging of ischaemic incidents that occurred before the veteran’s death, but it seems he was unaware of them. It is unlikely the Statement of Principles in relation to cerebrovascular accident could be satisfied in any event because it requires (at factor 6(f)) evidence that the veteran consumed at least 250 grams of alcohol per week in the 12 months preceding the cerebrovascular accident. That is not what the evidence suggests in this case.
Mr Harding, who appeared on behalf of Mrs Cairns, pointed out the absence of a Statement of Principles in relation to cerebrovascular disease meant we should approach the case on the same basis we would have done in the days before the introduction of the so-called “SoP system”.
We think there are two difficulties associated with the hypothesis advanced by the applicant – bearing in mind we must be able to identify material that points to the hypothesis. It is not enough to establish the hypothesis is not irrational or fanciful, or even that it is consistent with the material: see Bull v Repatriation Commission [2001] FCA 1832 at [40]-[43] per Emmett and Allsop JJ. In Bull, the Full Court suggested (at [43]) in a case with similar facts:
If the consumption had been of a pattern which bespoke a change in behaviour referable to service or to coping with the experience of service, it might point to a connection with war service.
While there is evidence that is capable of establishing the veteran experienced stress during the course of his service (see, for example, the historical report of Dr A. Palazzo), and there is evidence that he began to drink more heavily at the same time, there is no evidence pointing to a causal connection between those two events. There are certainly a number of other possible explanations for the increase in alcohol consumption during service: the high temperature and humidity in the remote locations where the veteran was based, boredom, peer-group pressure and camaraderie might all have played a role. Mr Harding argued we could readily infer a connection between the consumption of alcohol and the stress: he noted the Court in Bull acknowledged (at [40]) “People who experience stress sometimes cope by consumption of alcohol.”
We agree there is often a connection between stress and circumstances on the one hand and alcohol consumption on the other. And so it was in Bull: the veteran in that case became agitated when asked about the war, he drank with ex-servicemen, and exhibited a range of other behaviours suggesting he drank because of the war, even if he did not expressly identify (or even realise) that was why he resorted to alcohol. But there is nothing on the material in this case suggesting there is anything other than a temporal connection between the circumstances of Mr Cairns’s service and his pattern of alcohol consumption. In those circumstances, we are unable to identify material that points to a key part of the hypothesis.
We are also concerned that the evidence of Mr Cairns’s drinking patterns does not suggest he was consuming alcohol to the point where it was clearly unsafe. Dr Todman, a consultant neurologist called by the applicant, suggested a person who consumed in excess of 250 g of alcohol each week was putting himself at risk of developing cerebrovascular disease. He suggested the level of “safe” drinking was probably much lower than that – perhaps as low as 100 g per week. Dr Todman assumed the veteran was consuming a dangerous amount in light of the history he was provided. Some of the other medical experts who were consulted also referred to periods of heavy drinking. But it was unclear from the evidence of Mrs Cairns in the witness box that her late husband was actually consuming that much alcohol. While she referred to one period when he was on his own in Hobart for work-purposes where he was apparently drinking heavily, she described a fluctuating pattern of consumption at other times that may not have been dangerous, and which was probably not unusual for men of Mr Cairns’s age in the broader population. In those circumstances, we are doubtful there is material relating to the veteran’s consumption of alcohol that points to the connection with his service.
CONCLUSION
We are not satisfied there is a reasonable hypothesis connecting the circumstances of the veteran’s service with his death. The decision under review must therefore be affirmed.
I certify that the preceding 11 (eleven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe and Dr M Denovan, Member.
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Associate
Dated 15 October 2013
Date of hearing 2 October 2013 Counsel for the Applicant Mr A C Harding Solicitors for the Applicant Terence O'Connor Solicitors for the Respondent Repatriation Commission
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