Hart and Repatriation Commission

[2011] AATA 931

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 931

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/3894

GENERAL ADMINISTRATIVE DIVISION		)
Re		Jean Hart

Applicant

And Repatriation Commission

Respondent

DECISION

Tribunal Senior Member A K Britton

Date22 December 2011

PlaceSydney

Decision The decision under review is affirmed.

......................[sgd]........................

Senior Member A K Britton

CATCHWORDS

VETERANS’ ENTITLEMENTS – war widow’s pension – statement of principles - whether veteran’s death from vascular dementia war caused – absence of material pointing to relationship between alcohol consumption and war service – decision under review affirmed

Veterans’ Entitlement Act 1986 (Cth) – ss 13, 120, 120A, s 196B(14)

Repatriation Commission v Deledio (1998) 83 FCR 82; [1998] FCA 391

Bushell v Repatriation Commission (1992) 175 CLR 408; [1992] HCA 47

Repatriation Commission v Hill (2002) 69 ALD 581; [2002] FCAFC 192

Repatriation Commission v Glanville (2010) 114 ALD 616; [2010] FCA 405

Bull v Repatriation Commission (2001) 66 ALD 271; [2001] FCA 1832

REASONS FOR DECISION

22 December 2011                 Senior Member A K Britton

1.      Mrs Jean Hart seeks review of the decision made by the respondent Commission and affirmed by the Veterans' Review Board to refuse her claim for a pension made under the Veterans’ Entitlement Act 1986 (Cth) (the Act). The claim was made following the death of her husband, Mr Keith Burns in 2005 at the age of 81. Mr Burns served in the Royal Australian Airforce during World War II. 

2.      The parties agree that the “kind of death” suffered by Mr Burns was vascular dementia. Mrs Hart’s entitlement to a war widow’s pension turns on whether that condition was “war-caused”. 

Statutory Framework

3.      Section 13 of the Act provides that where the death of a veteran is “war-caused”, the Commonwealth will be liable to pay a pension by way of compensation to the dependants of the veteran.

4.      As Mr Burns’s entire period of service constitutes “operational service” within the meaning of the Act the question of whether his death was “war-caused” must be assessed by applying the standard of proof set out in ss 120 and 120A of the Act. 

5.      The approach to be taken when applying these provisions was authoritatively determined by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 (Deledio) and involves a four-step process:

·First, the decision-maker must consider whether all the material before it points to a hypothesis connecting the death with the circumstances of the particular service rendered by the veteran.

·Second, if the material raises such a hypothesis, the decision-maker must ascertain whether there is a Statement of Principles in force.

·Third, if so, the decision-maker must consider whether the hypothesis is reasonable by determining whether it is consistent with the “template” found in the Statement of Principles.

·Fourth, the decision-maker must then consider, under s 120(1), whether it is satisfied beyond reasonable doubt that the death was not war-caused.

Hypothesis Advanced

6.      The hypothesis advanced by Mrs Hart is that her husband’s vascular dementia was caused by cerebrovascular disease which in turn was related to, or materially contributed to, by his service-related drinking habit.  

Statement of principles

7.      It is agreed the relevant Statement of Principles (SoPs) are Statement of Principles concerning Vascular Dementia, Instrument No. 21 of 2006 and Statement of Principles concerning Cerebrovascular Accident, Instrument No. 51 of 2006.

8.      SoP No. 21 of 2006 provides that before it can be said that a reasonable hypothesis has been raised connecting death from vascular dementia with the circumstances of a person’s relevant service, at least one of the factors listed in clause 6 of the SoP must exist. These factors include:

(d) having a cerebrovascular accident before the clinical onset of vascular dementia;

9.      SoP No. 51 of 2006 provides that before a reasonable hypothesis can be said to have been raised connecting death from cerebrovascular accident with the circumstances of a person’s relevant service, at least one of the factors listed in clause 6 of the SoP must exist. These include:

(f) drinking an average of at least 250 grams of alcohol per week, for at least the one year before the clinical onset of cerebrovascular accident.

Is the hypothesis consistent with the SoPs?

10.     There is no argument that the material “points to” Mr Burns (i) having a cerebrovascular accident before the clinical onset of vascular dementia in 1998; and (ii) consuming at least 250 grams of alcohol per week, for at least 12 months before the clinical onset of that condition. The issue in dispute is whether the material points to the requisite consumption of alcohol throughout the relevant period being “related to” or “contributed to, in a material degree” by Mr Burns’s service: s 196B(14). 

11.     Mr Burns’s service spanned the period 30 June 1942 to 31 October 1945. In a questionnaire completed in late 1993, Mr Burns wrote that he began drinking in 1938 because of “pleasure, peer pressure, desire to be adult” and at that time was drinking about half a glass of beer each day or three to four glasses per week. In answer to the following questions he wrote:

Q.4 What was your average daily intake when you first started drinking? ½ glass of beer, i.e. 3-4 glasses per week.

Q.5 Did your drinking habit change during service?

YES [   P   ]     NO [     ]

Q.6 If so, when and how did your habit change? 1942. Increased and more constant intake.

Q.7 What was the reason for this? Peer pressure acquired taste, perceived need for pleasure and relief of stress.

Q.8 Did you drinking habit change after service?

YES [   P   ]   NO [     ]

Q9. If so, when and how did your habit change? 1946. Less drinking.

Q10. What was the reason for this? Need and desire to study, better health perceptions and marriage commitments.

12.     In a record completed shortly after his enlistment, “Royal Australian Air Force Entry Examination, Flying Ranks”, Mr Burns wrote that he drank “beer 2pts daily”. It was contended for Mrs Hart that the reference to “pts” was a reference to a “pot” which broadly equates to a middy or schooner of beer. A number of newspaper articles published during WWII were tendered in support of that proposition.

13.     Mrs Hart and Mr Burns met in 1974. Mrs Hart testified that she believed her husband probably overstated the amount he drank in the 1942 record to look “manly”. She pointed out that in 1938 he had been working as a teacher in a “very conservative country town” and boarding with a Methodist family who did not drink.  She testified that while he never specifically discussed with her the amount he drank before the war had told her about his time in the country during that period. 

14.     Mrs Hart testified that her husband often spoke about his war experience and would describe “quite graphically” what it was like being shot at during a mission. On her account he would often mention his feeling of great relief on returning from a bombing mission and going straight to the mess to “de-stress”.  Mrs Hart believes that as a result of the war, her husband learnt to associate alcohol use with stress alleviation. On her account, her husband was a person who tended to increase his level of alcohol consumption when under stress and whenever there was a stressful situation would immediately turn to alcohol.

15.     In a statement dated 26 July 2010 prepared for the proceedings before the Veterans’ Review Board, Mr Geoffrey Falkenmire wrote:

I knew Keith Burns, first, in the Sydney University Regiment, in 1941 … He joined the R.A.A.F. Air Crew in 1942.

…

Alcohol became a factor in relieving stress in the lives of young Crewmen. Keith was one such airman. One could call this “sociable drinking” but it led to many developing a more serious drinking habit in post war life.

…

As a close friend, I knew him as a teacher head master and inspector of schools after the war. It was obvious he became more dependent on alcohol as his responsibilities increased in the Department of Education. This was most likely due to the stress which began during his war service. I am not aware of the cause of death but I would certainly claim his dependence on alcohol and the accompanying stress were a significant cause of his demise.

16.     Another friend and colleague of Mr Burns, Mr Trevor Harrison, in a statement dated 31 January 2010, wrote:

As a close friend and colleague of Keith Burns over a long period and having frequently discussed with him his wartime experiences as a navigator on RAAF Liberators in the South East Asian/Pacific theatre of war …

He spoke of bombing missions over Japanese occupied Indonesia …

Keith never presented himself as a war hero. He frequently admitted that on operations he was often scared witless especially when the Liberator was under attack from enemy fighter aircraft. One story he told was of the time his plane was under simultaneous fire from three Japanese fighters. The Liberator was damaged and the rear gunner lost self-control and lay writhing on the floor, blocking the bomb release trap. It was Keith’s responsibility to deal with the fraught situation, the senior officer, the pilot, being fully occupied controlling the aircraft. The gunner never regained his composure and was carried off the plane, taken to a medical station and never seen or heard of again. He said that this was not an atypical happening within the flight crew when their aircraft was under attack and outnumbered. Those crewmembers who landed safely were traditionally plied with alcohol and cigarettes as a way of stabilising their emotions for early return on another mission.

Keith carried the wounds of active service stress for all the time I knew him.

…

Although he faced major challenging responsibilities of leadership in education after the war, Keith often said that civilian life was a breeze after wartime flying.

17.     At the request of the Commission, Mr Burns was assessed by psychiatrist Dr Bruce Westmore in 1993. In a report dated 15 July 1993, Dr Westmore recorded a history of Mr Burns using alcohol, sometimes on a daily basis, occasionally stopping drinking for a month at a time and seldom being intoxicated.  Dr Westmore concluded:

There is nothing in this man’s history or indeed in his current mental state examination to indicate that he suffered or currently suffers any diagnosable psychiatric disorder which could be related to stress. … He acknowledges himself that his life has not been too bad and there is nothing to suggest that he suffers from symptoms of either acute of chronic stress.  

18.     Mrs Hart stated that her husband was not a man to overstate his problems and in the context of a psychiatric assessment would have been eager to present well.

Does the material point to Mr Burns’s alcohol consumption being “related to” service?

19.     The third step of Deledio requires an assessment of whether the material points to some fact or facts (“the raised facts”) that support the hypothesis advanced on behalf of Mrs Hart (Bushell v Repatriation Commission (1992) 175 CLR 408 at 414). There must be material that points to each element of the hypothesis: Repatriation Commission v Hill (2002) 69 ALD 581 at 596. Fact finding at this stage is impermissible or, put another way, if there are disputed facts those unfavourable to the claimant are to be disregarded. There is no onus of proof on the claimant at this or any other stage (Repatriation Commission v Glanville (2010) 114 ALD 616).

20.     As noted, it is agreed that there is material that points to all elements of the hypothesis. The exception is Mr Burns’s requisite consumption of alcohol throughout the relevant period and being related to, or contributed to, in a material degree by his service.

21.     It is submitted for Mrs Hart that the material “points to” a pattern of changed behaviour whereby her husband learned to cope with stressful situations by using alcohol to self-medicate. The Commission contends that at best the material leaves open the possibility that Mr Burns used alcohol to relieve stress and learned to do so during service.

22.There is material that points to Mr Burns:

(i)       Commencing to drink alcohol prior to service;

(ii)       Drinking two pots of beer at the time of enlistment;

(iii)      Being provided with alcohol during service;

(iv)      Being “plied” with alcohol on return from assignments;

(v)      Experiencing significant stress while on service;

(vi)Increasing the amount he drank during service for among other reasons “relief of stress”

(vii)      Continuing to drink after service apart from a 12-month period where he was caring for his first wife (evidence of Mrs Hart)

(viii)     Increasing the amount of alcohol consumed after service (evidence of Mrs Hart);

(ix)      Using alcohol to alleviate stress after service (evidence of Mrs Hart)

(x)      Drinking 25 standard drinks per week around the time of onset of cerebrovascular disease (evidence of Mrs Hart);

(xi)      Being under a great deal of stress around the time of the onset of cerebrovascular disease.

23.     Mrs Hart and Mr Falkenmire are of the opinion that as a result of service Mr Burns developed a lifelong habit of using alcohol to alleviate stress. I have no doubt their respective opinions are honestly held but they do not constitute “material” that points to the necessary link between Mr Burns’s requisite consumption of alcohol throughout the relevant period being materially contributed to by service.

24.     Counsel for Mrs Hart, Mr Feredoes, submitted that had Dr Westmore known of the evidence given by Mrs Hart and Mr Burns’s colleagues he might have reached a different conclusion.  There is no way of knowing whether this would be the case. But it does not alter the fact that Dr Westmore did not provide an opinion that Mr Burns developed a lifelong drinking habit as a result of learned behaviour during service. While not fatal to Mrs Hart’s claim, Dr Westmore’s opinion does not assist her claim.

25.     Mr Feredoes also submits that the following passage from the joint judgement of Emmet and Allsop JJ in Bull v Repatriation Commission (2001) 66 ALD 271 (Bull) at 283 assists Mrs Hart:

On this basis, one can see that the reasons for the veteran's increased drinking after the War might be consistent with the hypothesis in [38] above [that the veteran began drinking heavily to deaden the memories of stressful war service or otherwise cope with his experiences in the War or the veteran developed a habit of consumption by reason of service camaraderie] but the drinking may also be equally explained otherwise, for example, a liking for convivial company of former service friends or a simple increased liking for alcohol consumption, especially after sporting activities.

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.

26.     In my opinion Bull does not assists Mrs Hart overcome the absence of material to support the proposition that her husband’s drinking habit was “related to” service. While possible and plausible that service materially contributed to the development of Mr Burns’s asserted lifelong habit of using alcohol to alleviate stress, there is no material pointing to this essential element of the hypothesis.  

27.     For that reason Mrs Hart’s claim must fail and I must affirm the decision under review.  

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton

Signed:         ......................[sgd].............................
  Associate to Senior Member A K Britton

Date/s of Hearing  26 October 2011
Date of Decision  22 December 2011
Counsel for the Applicant         Mr S Feredoes
Solicitor for the Applicant          Mr A Kemp, Kemp & Co. Lawyers

Solicitor for the Respondent     Mr N Bunn, Department of Veterans' Affairs Advocacy Section