Hole and Repatriation Commission
[2001] AATA 408
•14 May 2001
DECISION AND REASONS FOR DECISION [2001] AATA 408
ADMINISTRATIVE APPEALS TRIBUNAL)
Nº V99/1322
VETERANS' APPEALS DIVISION)
Re: ERNEST WILLIAM HOLE
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Mrs H.E. Hallowes, Senior Member
Mr C. Ermert, Member
Dr P.D. Fricker, Member
Date: 14 May 2001
Place: Melbourne
Decision:The Tribunal sets aside the decision under review and substitutes a decision that Mr Hole's vertebrobasilar ischaemia is war-caused
(sgd) H.E. Hallowes
Senior Member
VETERANS' AFFAIRS — entitlement — cerebrovascular accident — whether war-caused — whether consumption of alcohol arose out of or attributable to war service — whether Statement of Principles concerning Hypertension must be satisfied
Veterans' Entitlements Act 1986 ss.9, 120, 120A
Statement of Principles
Instrument Nº 5 of 1994 concerning Psychoactive Substance Abuse or Dependence
Instrument Nº 76 of 1998 concerning Alcohol Dependence or Alcohol Abuse
Instrument Nº 23 of 1998 concerning Cerebrovascular Accident
Instrument Nº 7 of 1999 concerning Cerebrovascular Accident
Instrument Nº 52 of 1999 concerning Cerebrovascular Accident
Instrument Nº 83 of 1995 concerning Hypertension
Instrument Nº 64 of 1998 concerning Hypertension
Instrument Nº 25 of 1999 concerning Hypertension
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v McKenna (1998) 52 ALD 72
McKenna v Repatriation Commission (1999) 29 AAR 70
Repatriation Commission v Keeley (2000) 60 ALD 401
Arnott v Repatriation Commission (2001) FCA 262
Repatriation Commission v Thomspon (2001) FCA 341
Gorton v Repatriation Commission (2001) FCA 286
Repatriation Commission v Deledio (1998) 27 AAR 144
Keeley v Repatriation Commission (1999) 56 ALD 455
REASONS FOR DECISION
14 May 2001 Mrs H.E. Hallowes, Senior Member
Mr C. Ermert, Member
Dr P.D. Fricker, Member
Mr Hole seeks review of a decision of the Repatriation Commission made on 19 May 1998, which was affirmed by the Veterans' Review Board ("the VRB") on 21 September 1999, that his cerebrovascular accident was not war-caused, pursuant to the Veterans' Entitlements Act 1986 ("the Act"). In lodging his claim for disability pension on 28 April 1998 Mr Hole listed his disability as "C.V.A.", and stated that he believed that his service caused, contributed to or aggravated his disability because of his service-related smoking habit. In determining the matter on 19 May 1998 the delegate of the Repatriation Commission advised that the medical name of Mr Hole's claimed condition was vertebrobasilar ischaemia.
The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the documents"), together with further material lodged by both parties at the hearing.
Mr D. De Marchi, solicitor, who represented Mr Hole at the hearing, raised two hypotheses that Mr Hole's vertebrobasilar ischaemia was war-caused. The first was that Mr Hole's consumption of alcohol was attributable to his war service and that factor 5(e) of Instrument Nº 23 of 1998 concerning Cerebrovascular Accident, the Instrument in effect when the matter was determined by the Repatriation Commission, connected Mr Hole's vertebrobasilar ischaemia with the circumstances of his service. Factor 5(e) provided:
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting cerebrovascular accident or death from cerebrovascular accident with the circumstances of a person's relevant service are:
. . .
(e)regularly consuming an average of 250g/week of alcohol (contained within alcoholic drinks), for a continuous period of at least one year immediately before the clinical onset of cerebrovascular accident; or
The Tribunal notes that Instrument Nº 23 of 1998 was revoked and replaced by Instrument Nº 7 of 1999 which in turn was revoked and replaced by Instrument Nº 52 of 1999. Mr De Marchi's second hypothesis was that Mr Hole satisfied factor 5(a) of Instrument Nº 23 of 1998 connecting Mr Hole's disease with his service. Factor 5(a) provided:
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting cerebrovascular accident or death from cerebrovascular accident with the circumstances of a person's relevant service are:
(a)suffering from hypertension before the clinical onset of cerebrovascular accident; or
Instrument Nº 23 provided the following relevant definitions:
7.For the purposes of this Statement of Principles:
"alcohol (contained within alcoholic drinks)" is measured by the alcohol consumption calculations utilising the Australian Standard of 10 grams of alcohol per standard alcoholic drink;
. . .
"hypertension" means:(a)a usual blood pressure reading where the systolic reading is greater than or equal to 140mmHg and/or where the diastolic reading is greater than or equal to 90mmHg; or
(b)where treatment for hypertension is being administered,
attracting an ICD code in the range 401 to 405;
Mr De Marchi put to the Tribunal that, in light of the definition of "hypertension" under Instrument Nº 23 of 1998 concerning Cerebrovascular Accident, Mr Hole did not have to also satisfy Instrument Nº 25 of 1999 concerning Hypertension as long as the Tribunal was satisfied that Mr Hole suffered from hypertension as defined under Instrument Nº 23 of 1998. The Tribunal has two things to say about this. First, the Tribunal must apply what was said by the Federal Court in Repatriation Commission v McKenna (1998) 52 ALD 72, at first instance, and on appeal, in McKenna v Repatriation Commission (1999) 29 AAR 70, the Full Federal Court stating, at page 77:
. . . In our view, for either of the hypotheses to be upheld by a Statement of Principles, as required by s 120A(3) of the Act, each of its sub-hypotheses would have to be so upheld. A complex hypothesis (ie one comprising more than one element or part) can be no stronger than each of its elements or parts.
We can see no difficulty in the way of interpreting s 120A(3) of the Act as allowing a hypothesis to be upheld by more than one Statement of Principles.
Secondly, the Tribunal reflects on Mr De Marchi's contention that Instrument Nº 25 of 1999 is the relevant Statement of Principles ("SoP") concerning Hypertension which the Tribunal should consider if it applies. When the Repatriation Commission determined the matter on 19 May 1998, Instrument Nº 83 of 1995 was in effect and that may be the Instrument the Tribunal should apply in considering whether Mr Hole's vertebrobasilar ischaemia is war-caused, being connected with his war service through his hypertension. On the medical evidence before the Tribunal there appears to be no doubt that Mr Hole suffers hypertension. However, the Tribunal is satisfied that a reasonable hypothesis must also be raised connecting Mr Hole's hypertension with the circumstances of his service, that is, the relevant SoP concerning Hypertension must also be satisfied so that hypothetical links between service and Mr Hole's vertebrobasilar ischaemia are all raised. To satisfy the definition of hypertension in a SoP, does not provide the connection between that disease and service.
It was Mr De Marchi's contention that the Full Federal Court in Repatriation Commission v Keeley (2000) 60 ALD 401 left the way open for the Tribunal to apply the most beneficial SoP in effect during any part of the assessment period when deciding whether a veteran's disease is war-caused. In Keeley the Full Federal Court dismissed an appeal by the Repatriation Commission against a decision of the Federal Court at first instance, (1999) 56 ALD 455, which decided Mr Keeley's matter according to factors set out in a revoked SoP, in effect when the Repatriation Commission determined the matter. Lee and Cooper JJ stated, at paragraph 45 of their judgment, that, after a claim was determined by the Repatriation Commission, the right accrued by a veteran under the Act was a right to have that determination reviewed. However, Lee and Cooper JJ went on to state, in paragraph 46 of their judgment, that it may be assumed that a construction of substantive provisions less likely to work or cause unfairness in result is to be preferred.
It may be contended that parliament intended that the review of a decision on a claim made pursuant to a SoP more beneficial to a claimant than the terms of a SoP that replaced the former SoP after the decision had been made, is to be conducted as if the former SoP had not been revoked.
An application for special leave to appeal to the High Court in Keeley's case was refused.
After the hearing of this application, three further decisions have been handed down by the Full Federal Court, in Arnott v Repatriation Commission [2001] FCA 262 (decided 16 March 2001), by Stone J in Gorton v Repatriation Commission [2001] FCA 286 (decided 21 March 2001) and by the Full Federal Court in Repatriation Commission v Thomspon [2001] FCA 341 (decided 2 April 2001). In Arnott's case Merkel J, with whom Spender J and Marshall J agreed, had the following to say, so far as relevant to this application:
17. It seems to be implicit, if not explicit, in the approach of the Full Court in Keeley that a contrary intention might be found if the terms of a later SoP are more beneficial to a claimant than the terms of the SoP which it replaced. Of course, the contrary intention must be discerned from all of the terms of the later SoP and not just particular aspects of it.
His Honour went on to say:
22. If I were required to determine whether, in accordance with the decision in Keeley, the 1995 SoP or the 1999 SoP were applicable to the decision of the AAT in the present case, I would have some difficulty in doing so. Little argument was addressed to this question in the course of the appeal and, as pointed out earlier, whether the necessary contrary intention was disclosed was to be discerned from the terms of the replacement SoP read as a whole. However, I am satisfied that it is unnecessary to make such a determination for the purposes of this appeal as the same outcome will be reached irrespective of which SoP is to be applied. . . .
It now appears to this Tribunal that there is additional complexity in arriving at the correct decision following the decision in Arnott if all the Statements of Principles in effect during an assessment period must be considered to determine whether a contrary intention is disclosed and whether a later SoP is more beneficial to a claimant, Merkel J having gone on, at paragraph 39, to state:
39. . . . the review by the AAT is inquisitorial rather than adversarial and, in discharging its duty to arrive at the correct or preferable decision in the case before it, the AAT may itself take the initiative and request such information: see Bushell v Repatriation Commission (1992) 175 CLR 408 at 424-425.
Merkel J so observed because he had commenced that paragraph by saying that he was
". . . mindful of the fact that the appellant's solicitor, who appeared for the appellant before the AAT and in the Court, must bear responsibility for the failure to explore the nature and extent of the appellant's pain and mobility which were key elements of his claim. . . .
When the responsibility falls on the Tribunal to take the initiative, particularly if a veteran is unrepresented, the process is unlikely to be economical and quick. In Gorton, Stone J referred to Arnott, where the issue of which SoP was more beneficial did not have to be answered. Stone J said that:
. . . Unfortunately, I do not have the luxury of avoiding this issue. It is not possible for me to conclude that the outcome of this case would be the same whichever Statement of Principles applied.
In Gorton the Repatriation Commission had refused the veteran's claim on 14 February 1997, when Instrument Nº 83 of 1995 concerning Hypertension was in effect. Counsel before the Federal Court contended that the Tribunal was required to consider whether the veteran's hypothesis "conformed to either of the two instruments that succeeded Instrument 83, namely Instrument 64 of 1998 and Instrument 25 of 1999". Stone J said:
23.. . . the Act [the Veterans' Entitlements Act] evinces an intention for the claim to be assessed in the light of all available evidence, including medico-legal evidence as embodied in the most recent Statement of Principles; ss 138 and 139. The AAT also has the duty to review decisions of the Board on the merits and conduct a complete rehearing of the claim. As Bowen CJ and Deane J commented in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589 in relation to appeals to the AAT,
" The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal."
24. The decision of the Court in Keeley can thus be seen as an exception to this position, dictated by the beneficial nature of the legislature to which the Court referred. The exception applies to preserve the benefit of an existing entitlement to be assessed in the context of a more favourable Statement of Principles. In my opinion, the AAT is obliged to consider the applicant's claim in the context of the Statement of Principles No 25 of 1999 unless Instrument 83 is more favourable. If the latter position is the case, then the applicant's claim must be considered in the context of Instrument 83.
Instrument Nº 83 of 1995 in effect at the date of the Repatriation Commission decision in Gorton provided, so far as relevant:
1.Being of the view that there is sound medical-scientific evidence that indicates that hypertension and death from hypertension can be related to operational service rendered by veteran's, peacekeeping service rendered by members of Peacekeeping forces and hazardous service rendered by members of the Forces, the Repatriation Medical Authority hereby determines, under subsection 196B(2) of the Veterans' Entitlements Act 1986, that the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting hypertension or death from hypertension with the circumstances of that service, are:
. . .
(b)suffering from psychoactive substance abuse involving daily consumption of alcohol before and continuing at least until the accurate determination of hypertension; or
In Thompson, where a SoP first came into force after the decision of the VRB but before the Tribunal decided the matter, compared with Keeley where the SoP had been revoked and replaced, the majority applied Keeley with respect to accrued rights.
It may or may not be easier for Mr Hole to satisfy factor 1(b) of Instrument Nº 83 of 1995 concerning Hypertension (above), rather than factor 5(b) of Instrument Nº 25 of 1999, which provided:
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting hypertension or death from hypertension with the circumstances of a person's relevant service are:
. . .
(b)suffering from alcohol dependence or alcohol abuse, involving consumption of an average of at least 200 grams per week of alcohol (contained within alcoholic drinks) at the time of the accurate determination of hypertension; or
and further, during the assessment period, Instrument Nº 64 of 1998 revoked Instrument Nº 83 of 1995 before being itself revoked by Instrument Nº 25 of 1999. The plot thickens because Instrument Nº 83 of 1995 defines "psychoactive substance abuse or dependence" and Instruments Nº 64 of 1998 concerning Hypertension and Nº 25 of 1999 concerning Hypertension define "alcohol abuse" and "alcohol dependence", although not in exactly the same terms. Fortunately, factor 5(b) of Instrument Nº 64 of 1998 is in the same terms as factor 5(b) in Instrument Nº 25 of 1999. Applying what has been said in McKenna's case, if Instrument Nº 83 of 1995 concerning Hypertension is more beneficial to Mr Hole's circumstances, Mr Hole must also satisfy Instrument Nº 5 of 1994 concerning Proactive Substance Abuse or Dependence, but, if Instrument Nº 25 of 1999 is more beneficial, the Tribunal must turn to Instrument Nº 76 of 1998 concerning Alcohol Dependence or Alcohol Abuse which revoked Instrument Nº 5 of 1994.
While dealing with Federal Court authority, the Tribunal turns to what was said in Repatriation Commission v Deledio (1998) 27 AAR 144, at pages 159-160, where the Federal Court restated the course which the Tribunal is to take in applying sections 120 and 120A of the Act:
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) of the 1986 Act. 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 s 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 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.
Mr Hole served in Japan with the British Occupational Force from 16 September 1947 to 15 September 1950. He therefore had operational service and subsections 120(1) and (3), and 120A(3) apply:
120(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
. . .(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
. . .
120A(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Mr Hole was born in May 1923. He enlisted for service on 10 April 1946. He gave oral evidence to the Tribunal that he had been a "social drinker" before service. He worked in sawmills in the Tasmanian bush before enlisting for service and he only went into town once a month with other employees when they drank at a hotel. He recalled one occasion when he drank so much that he was sick but he then suggested that he had only been out in the bush for three months. He said that he commenced drinking aged 16 years and he agreed that he liked drinking but it was not clear to the Tribunal whether that was before he joined the Army or afterwards. The Tribunal notes that Mr Hole had told the VRB he left school at 14 years of age and that he mainly worked in timber mills in Tasmania prior to enlistment. The VRB recorded that for 4 to 5 months before joining up Mr Hole lived in a "dry camp out in the scrub". Once a month he would go to Ulverstone and he would get "pretty full". He described himself to the Tribunal as a "two pot screamer".
Mr Hole provided the Tribunal with a statement dated 9 February 2000 in which he recorded that, prior to service, he did not drink very much at all. This is not consistent with the evidence he gave before the VRB, nor with the history he gave to Dr B. Kenny, psychiatrist (see later). He told the Tribunal that he drank in Japan because he was bored and "most blokes" went for a drink. He went with them. They all got "stuck into it" together, privates, corporals and sergeants, and sometimes with his Section Commander. There was no shortage of alcohol, the only limiting factor being the money to pay for it. Mr Hole recalled one event, which quite upset him, when a bridge he was helping to build collapsed. No one was hurt. He reflected that when you are young, you just forget about it. On returning to Australia after service he carried on drinking where he had left off.
After service Mr Hole worked with the Merchant Marine for 3 years and he was issued with 1 bottle of spirits each month and 2 bottles of beer a day when at sea. He then worked for a ship repair company and the Department of Army as a shoreman. Dr N. Smith, his general practitioner, told him to cut down his drinking. He said that he now drinks 30 cans of light beer per week at home and 5 pots at the RSL on 3 days a week. Not long before Christmas, in December 1997, he woke up to find his bed spinning and rocking. He called Dr Smith who told him that he had had a stroke. He remained in bed for 4 or 5 days. Since then he has had six, what he describes as, "drop falls". They have all occurred for no apparent reason in his backyard. Mr Hole described his lifestyle to the Tribunal, but, as it was agreed that the matter should be remitted to the Repatriation Commission for assessment if the Tribunal is to set aside the decision under review, the Tribunal will not summarise that evidence here.
The documents disclose that, on 7 May 1947, before Mr Hole was posted to Japan, he was charged in Seymour with being drunk and disorderly. The only other relevant evidence amongst the documents with respect to Mr Hole's consumption of alcohol is a history taken by Dr M. Rosenbaum, physician, whose report dated 10 February 1999 was amongst the documents. Dr Rosenbaum recorded that Mr Hole "drank occasionally" prior to war service when he commenced to drink "taking on average half a bottle of sake per day". This evidence does not help the Tribunal resolve the issue as to whether Mr Hole had an established pattern of drinking alcohol before service. Dr Rosenbaum recorded that Mr Hole had spent most of his life as a heavy drinker, describing intakes of up to
20 to 30 units of beer per day. He continues to drink at the present time at a rate of approximately 4 beers per day having substantially reduced his intake from 1992 onwards . . . .
Professor K. Myers, vascular surgeon, examined Mr Hole at his solicitor's request. Professor Myers recorded that Mr Hole found conditions of service ". . . to be very stressful". That opinion is certainly not borne out by the evidence Mr Hole gave the Tribunal. Professor Myers noted Dr Rosenbaum's report and said that he agreed with him that Mr Hole's hypertension was related to prolonged alcohol consumption and obesity. Professor Myers acknowledged that there are a number of possible explanations for vertigo such as Mr Hole has experienced. One of them is vertebrobasilar ischaemia. In the context of Mr Hole's subsequent drop attacks vertebrobasilar ischaemia is the most likely diagnosis. Professor Myers said that a cerebral event that persists for more than a few hours would normally be accepted as a completed stroke, rather than being accepted as a transient ischaemic attack. The fact that Mr Hole had a normal CT scan of the brain did not preclude the diagnosis as such scans demonstrate abnormalities in only 70 per cent of cerebrovascular accidents. In the case of vertebrobasilar stroke the CT scan is even more likely to be normal. Vertebrobasilar ischaemia is most likely due to atherosclerotic disease. Professor Myers's comment on Mr Hole's low cholesterol reading of 3 was that lipids are only one of the risk factors for atherosclerosis. In coronary artery disease it is most significant. However, the most significant risk factors for vertebrobasilar disease are smoking and hypertension.
Professor Myers's evidence satisfies the Tribunal that Mr Hole suffers from vertebrobasilar ischaemia which falls within all the Statements of Principles concerning Cerebrovascular Accident referred to above. For the purposes of the SoP, "cerebrovascular accident" means not only intracerebral haemorrhage but also cerebral ischaemia.
Dr Kenny examined Mr Hole for the Repatriation Commission and he provided two reports to the Tribunal, dated 9 March 2000 (exh 1) and 26 February 2001 (exh 2). The history Dr Kenny obtained with respect to Mr Hole's drinking prior to service was that:
While working in sawmills he often worked in the bush and when he and others would come back into town they would "have a few snorts". He was referring to drinking and being "a two pot screamer".
Turning to Mr Hole's drinking during and after service, Dr Kenny recorded in his report dated 9 March 2000:
He said he drank a fair amount in the Army out of bordom [sic] and because of its ready availability. He said that he didn't drink much before the Army but acknowledged that sometimes when he and other workers from the sawmills would come into town, they would "have a few snorts". He said while he was in the Army he got into a few blues from drinking, continued to drink heavily after he left the Army but has never had any drink/driving offences, no drunk and disorderly incidents, never been any breakdown in relationships because of his drinking, no job loss because of his drinking. He said he might take an occasional "sickle" from work with a hangover but that would be rare and he said he used [sic] drink anything he could get for a while, acknowledges that he used [sic] drink too much and now drinks "a slab a week" which works out to be approximately five standard drinks a day — that is fifty grams of alcohol a day, three hundred and fifty grams of alcohol a week.
Dr Kenny gave oral evidence to the Tribunal as to whether Mr Hole had experienced a stressful event within the meaning of that term in SoP Instrument Nº 5 of 1994 concerning Psychoactive Substance Abuse or Dependence. He said that he found Mr Hole to be happy and responsive during interview and that, for his age, he appeared to be reasonably active. He did not relate Mr Hole's drinking to the episode which occurred when the bridge collapsed. He obtained an oral history that Mr Hole considered drinking was the "norm" during service and that it was encouraged.
Dr Smith's clinical notes with respect to Mr Hole were before the Tribunal but they include no history with respect to his drinking habits, although they do record on 22 December 1997 "Vertigo. Dec 16, 17th for cerebral scan 22/12". The first record of entry in the clinical notes is in September 1989 when Dr Smith noted that Mr Hole was already hypertensive. There is a record on 20 January 1992, "reduce alcohol". Treatment for hypertension was noted in a letter from Mr G. Joyce, urologist, to Dr Smith, dated 12 August 1991. Dr Joyce observed, "He is apparently a fairly heavy drinker".
Turning to the course the Tribunal is to take, the Tribunal determines that the material before it points to the hypotheses raised by Mr De Marchi connecting Mr Hole's vertebrobasilar ischaemia with the circumstances of the service rendered by him. The relevant SoP in force is that concerning Cerebrovascular Accident. In forming the opinion whether the hypotheses raised by Mr Hole are consistent with the template in the SoP, the Tribunal will first turn to factor 5(e) in Instrument Nº 23 of 1998, factor 5(e) in Instrument Nº 7 of 1999 and factor 5(e) in Instrument Nº 52 of 1999, which fortunately are identical. There appears to be no dispute that the clinical onset of Mr Hole's cerebrovascular accident was in December 1997 and, if the facts raised before the Tribunal with respect to Mr Hole's drinking were true, he probably was regularly consuming an average of 250 grams per week of alcohol for the period of at least 1 year before his cerebrovascular accident. Dr Kenny estimated that Mr Hole had been drinking 350 grams of alcohol per week. This calculation is apparently based on a consumption of a slab of full strength beer per week. Relying on Mr Hole's oral evidence to the Tribunal, he was only drinking light beer during the year before his cerebrovascular accident. When he gave that evidence however he increased his estimate of the number of cans he was consuming each week from that which he had told earlier decision-makers and he also referred to a consumption of 15 pots per week at the RSL. If this was his consumption during the year before his cerebrovascular accident, his consumption of alcohol would have been 450g per week. Mr Hole has provided other medical practitioners with a consistent history of heavy drinking, even though he apparently reduced his drinking after 1992.
The more difficult issue for the Tribunal is whether the facts raised point to a connection between Mr Hole's drinking and his war service, rather than him having an established drinking habit before enlistment when he was aged almost 23 years. When working at timber mills in Tasmania it appears that he would take the opportunity when it presented itself to him to get "pretty full". On the other hand, the evidence does not point to him being a regular drinker at that time, although, once again, there were inconsistencies in Mr Hole's evidence and he was charged with being drunk and disorderly in May 1947.
Bearing in mind the test the Tribunal must apply (see Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564), it is the Tribunal's opinion that the material before it raises a hypothesis which is reasonable. Facts have been raised which have not been disproved, that it was Mr Hole's service in Japan which established his daily heavy drinking pattern, rather than his occasional forays into Ulverstone before service. Mr Hole's taste for alcohol may already have been whetted but, once he arrived in Japan, alcohol was available to him every day. It was cheap, he was bored, and he was one of the blokes. His drinking habit is connected with his service and one of the hypotheses raised on Mr Hole's behalf contains factor 5(e) of the relevant SoP. Although the Tribunal has some concerns about the accuracy and veracity of Mr Hole's evidence with respect to his consumption of alcohol, those doubts are not sufficient to make the hypothesis raised with respect to factor 5(e), too tenuous to be reasonable, nor is the Tribunal satisfied beyond reasonable doubt that there is no sufficient ground for arriving at this determination.
Having found that a factor exists such that it can be said a reasonable hypothesis has been raised connecting Mr Hole's cerebrovascular accident with the circumstances of his relevant service, the Tribunal has the luxury of avoiding the issue which it may have had to grapple with, referred to in paragraphs 4 and following above, and it will not turn its mind to factor 5(a) of Instrument Nº 23 of 1998.
The Tribunal will set aside the decision under review in accordance with these reasons.
I certify that the twenty-two [22] preceding paragraphs are a true copy of the reasons for the decision herein of
Mrs H.E. Hallowes, Senior Member
Mr C. Ermert, Member
Dr P.D. Fricker, Member
(sgd) Catherine Thomas
Personal AssistantDate of Hearing: 15.03.01
Date of Decision: 14.05.01
Solicitor for the Applicant Mr D. De Marchi, Messrs De Marchi & AssociatesSolicitor for the Respondent Ms T. Chant, Departmental Advocate
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