Holmes and Repatriation Commission (Veterans' entitlements)
[2019] AATA 640
•29 March 2019
Holmes and Repatriation Commission (Veterans' entitlements) [2019] AATA 640 (29 March 2019)
Division:VETERANS' APPEALS DIVISION
File Number: 2017/4489
Re:Keran Holmes
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Deputy President J Sosso
Date:29 March 2019
Place:Brisbane
The decision under review is set aside and the matter is remitted to the Respondent for appropriate action.
..........................[Sgd].............................................
Deputy President J Sosso
CATCHWORDS
VETERANS’ AFFAIRS – widow’s pension – whether death of veteran defence-caused – alcohol use disorder – SoP 49 of 2017 – having a clinically significant disorder of mental health – Category 1A stressor – Category 1B stressor – Category 2 stressor – death of a significant other – inability to obtain appropriate clinical management – whether Factors caused or contributed to death – whether Factor arose out of, or was attributable to service – reviewable decision set aside.
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth)
CASES
Boyes and Repatriation Commission [2004] AATA 17
Brew v Repatriation Commission (1999) 94 FCR 80
Gilkinson v Repatriation Commission (2011) 197 FCR 102
Lee v Minister of Pensions (No 2) (1948) 2 War Pensions Appeals R 1901
O’Brien and Repatriation Commission [2003] AATA 525
Repatriation Commission v Brady [2007] FCA 1087
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Gorton (2001) 110 FCR 321
Repatriation Commission v Law (1980) 31 ALR 140
Repatriation Commission v Law (1981) 147 CLR 635
Repatriation Commission vMilenz (2006) 93 ALD 107
Repatriation Commission v Money [2009] FCAFC 11
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Tuite (1993) 39 FCR 540
Repatriation Commission v Wedekind [2000] FCA 649
Repatriation Commission v Wellington [1999] FCA 1552
Roncevich v Repatriation Commission (2005) 222 CLR 115
Somerset v Repatriation Commission [2005] FCA 1399
Trotter and Repatriation Commission [2003] AATA 766SECONDARY MATERIALS
Statement of Principles No 2 of 2009 – Alcohol Dependence and Alcohol Abuse
Statement of Principles No 30 of 2014 – Alcohol Use Disorder
Statement of Principles No 24 of 2016 – Adjustment Disorder
Statement of Principles No 49 of 2017 – Alcohol Use DisorderREASONS FOR DECISION
Deputy President J Sosso
29 March 2019
INTRODUCTION
Mr Jeffrey Gordon Holmes (the veteran), who was born in December 1951, rendered service in the Royal Australian Air Force (RAAF) from 8 January 1968 until 22 February 1974 – Exhibit 1 T3 p. 1. The veteran rendered eligible defence service from 7 December 1972 until his discharge. In the period 17 February 1972 to 6 February 1974 the veteran served at RAAF Butterworth in Malaysia.
The veteran was posted to the following locations – Exhibit 4:
(a)RAAF School of Technical Training Wagga Wagga 8 January 1968
(b)481 Squadron Williamtown 9 July 1970
(c)76 Squadron Williamtown 12 July 1971
(d)75 Squadron Butterworth 17 February 1972
(e)Base Squadron Amberley 6 February 1974
The veteran’s first mustering was as an Apprentice and from 25 June 1970 he served as a Armament Fitter. The veteran rose through the ranks and when he was discharged he had achieved the rank of Leading Aircraftman.
Ms Keran Elisa Holmes (the Applicant) married the veteran on 22 July 2002 – Exhibit 1 T19 p. 121. Both the veteran and the Applicant had previously been married, and the Applicant had known the veteran since approximately 1992 – Exhibit 1 T27 p. 157.
Prior to his death the following disabilities of the veteran were accepted as defence-caused:
(a)actinic keratosis – 25.12.2001;
(b)bilateral sensorineural hearing loss – 25.12.2001;
(c)non-malanotic malignant neoplasm of the skin of various sites – 25.12.2001;
(d)tinnitus in the right ear – 25.12.2001;
(e)cervical spondylosis – 25.12.2011; and
(f)lumbar spondylosis – 29.5.2011.
Also prior to his death, the following claimed disabilities of the veteran were not accepted:
(a)sarcoidosis – 2.5.2002;
(b)alcohol dependence – 30.6.2004;
(c)seborrheic dermatitis – 30.6.2004; and
(d)intertrigo – 30.6.2004.
In rejecting the veteran’s claim for alcohol dependence, the Veterans’ Review Board (the Board), in a determination of 30 June 2004 (Exhibit 1 T16 pp. 92 – 98), referred to the relevant Statement of Principles (SoP), which at that time was Instrument No. 77 of 1998, and found that it was not reasonably satisfied that the veteran had experienced an identifiable psychosocial stressor during eligible service, that the veteran’s adjustment disorder was not related to service and that the veteran’s pattern of heavy alcohol consumption had been established prior to service – Exhibit 1 T16 pp. 96 – 97.
The veteran passed away on 1 July 2016. The cause of death as stated in his Death Certificate was “(a) Gastrointestinal bleed (b) Alcoholism”. The duration of the said causes was stated to be “(a) 12 hours (b) more than 10 years” – Exhibit 1 T20 p. 122.
On 29 July 2016, the Applicant claimed the war widow’s pension – Exhibit 1 T21 pp. 123 – 132. On 13 July 2017, the Board affirmed a decision of the Repatriation Commission (the Respondent) that the death of the veteran was not related to service and that a war widow pension was therefore not payable to the Applicant – Exhibit 1 T2 B1 – B15.
The Applicant has sought a review of the Board’s decision by the Tribunal – Exhibit 1 T1 A1 – A4.
The issue for determination is whether the Applicant is entitled to a pension pursuant to s 70 of the Veterans’ Entitlements Act 1986 (the Act) on the basis that the death of the veteran was defence-caused.
The Applicant contends that the veteran’s alcoholism was related to his eligible defence-service. The condition is said (Applicant’s Statement of Facts and Contentions (ASFC) para 6) to have arisen from either:
(a)physical attacks, assaults and bullying during the veteran’s service, commencing at Recruit School to the time he was discharged; or
(b)the RAAF failed to provide appropriate clinical management for the veteran’s alcohol abuse.
BACKGROUND
The veteran was born in Brisbane, but as a child lived in a number of places because his father served in the RAAF. The veteran’s father was said to be a heavy drinker, and regularly visited the Sergeants’ Mess – Exhibit 1 T11 p. 74.
During his secondary school years, the veteran attended a boarding school (Toowoomba Grammar) and went immediately from secondary school to serving in the RAAF at the RAAF School of Technical Training at Wagga Wagga – Exhibit 1 T11 p. 72, T16 p. 95, T26 p. 146.
The veteran was only 16 years old when he enlisted. In his entry medical examination of December 1967, he was recorded as being only 15 years of age and it was noted that he was 5’ 10’’ in height and weighed 135 lb, or less than 10 stone – Exhibit 1 T3 p. 3. In short when the veteran first enlisted he was very young and slightly built.
A perusal of the contemporary service records of the veteran whilst undergoing his apprenticeship, disclose that he was not adapting to his new environment very well. The records suggest that the veteran was an unhappy teenager who found the strict regime of RAAF life difficult to endure.
In the first Half-Yearly Progress Report for the period January 1968 to July 1968, it was observed by the Squadron Leader – Exhibit 4:
“He will have to concentrate and work harder if he is to complete his apprenticeship.”
The next Half-Yearly Progress Report disclosed no perceived improvement in the veteran’s attitude and performance – Exhibit 4:
“App Holmes would do well to realise this opportunity he now has of learning a trade. This could then result in an improved attitude to his studies and may also give him a better personality.”
By the time the January 1969 to July 1969 report was completed, a distinct pattern had developed. The Squadron Leader observed – Exhibit 4:
“Apprentice Holmes is not making a determined effort to learn a trade and his results prove this. He is easily led and is apprehensive towards authority. He participates in a range of sports. His ability to successfully complete his apprenticeship is in doubt.”
By the end of 1969 there were perceived improvements – Exhibit 4:
“Apprentice Holmes does not rate more than a satisfactory assessment over-all. However, he has shown improvement in most areas since his last report. The main area in which he could improve further is in his personal attitude and determination.”
The final apprenticeship report again suggests that the veteran was a troubled individual with undisclosed personal problems – Exhibit 4:
“Apprentice HOLMES has not settled down in his final terms work. This may have been due to personal worries which have affected his studies. After graduation he may settle down.”
These reports, while critical of the attitude and performance of the veteran, can also be viewed in a different fashion. They disclose that a teenager separated from his family and placed in a strange and confronting environment where he was obviously struggling not only academically, but also mentally. The personal worries that affected his studies are not explained, but it is consistent with the veteran’s testimony at the 2004 Board hearing that he had been subjected to various forms of bastardisation at Wagga Wagga and that he had consulted with a psychologist in relation to being separated from his family – Exhibit 1 T2 B10 (paras 42, 59).
By 13 June 1971, his performance had not substantially improved, at least according to Squadron Leader W Hayward – Exhibit 4:
“The airman is of average ability who needs constant supervision. He appears to be lacking in initiative and drive and his dress and bearing is well below average yet he is making satisfactory progress as a tradesman in his fourth year of apprenticeship.”
Again, this report suggests that the veteran was not fully engaged with his service with the RAAF, and for undisclosed reasons lacked motivation and energy.
When giving evidence to the Board in 2004, the veteran admitted that he was consuming alcohol prior to being posted to Butterworth, but maintained that his drinking increased considerably whilst serving in Malaysia – Exhibit 1 T16 pp. 95 – 96. The Applicant contends (Applicant’s Closing Statement (ACS) para 5) that the veteran’s drinking habit prior to Butterworth was mild, with only an occasional drink and being of a social nature. In any event it is contended that Apprentices were prohibited from consuming alcohol until the end of their apprenticeship – ACS para 5.
As previously noted, the veteran was posted to Butterworth from 17 February 1972.
For reasons that are not clear, but perhaps because he had a more sympathetic commanding officer, the veteran’s report of 1 July 1972 showed marked improvement. Flight Officer P Russo wrote an extremely positive report of the veteran’s performance and behaviour – Exhibit 4:
“LAC HOLMES will become an excellent tradesman. He shows the personal drive and keenness to do well. Even as a junior LAC his SNCO’s speak highly of him as an efficient worker. His nature is generally quiet but he gets on very well with others and is very co-operative.”
This fulsome account was not totally shared by the Commanding Officer who while agreeing with the assessment of Flight Officer Russo noted:
“He is an average member. Hasn’t been successful with his trade test yet but will be given tuition …”
The annual report for the 1972 – 1973 period is contradictory. This report contains observations by both Flight Officer Russo of 2 July 1973 and the Commanding Officer, Squadron Leader Wilson of 4 July 1973. By the time this report was prepared the veteran had been serving at Butterworth for approximately 17 months.
Flight Officer Russo, as with his 1972 report, gave a positive account of the veteran’s service:
“LAC HOLMES continues to make good progress. For the past few months he has been assigned to missile preparation and servicing duties in which he has had no previous experience. His SNCO’s report a keen willingness to learn and he works well. He shows a good degree of personal energy and drive as a young LAC. He is generally well liked by most. It is thought that this member will do well in the future.”
This positive and supportive view of Flight Officer Russo was not shared by the Commanding Officer who reached a diametrically different conclusion:
“I believe this member has a personality problem. He is immature and is drinking heavily. I anticipate his early repatriation to Australia unless improvement is made. These aspects have not yet intruded into the work situation and this has to some degree misled his section commander. I have personally observed this member for some time and I am confident that he has limited potential in the service unless he achieves greater maturity.”
On 23 August 1973 the veteran made application for a reduction of Service from 15 to 9 years. The following reasons were advanced by the veteran – Exhibit 4:
“Upon joining the Airforce at the age of 16 years I was heavily influenced by my parents to sign up for a period of 15 years. This I did having no real knowledge of service life or what I wished to do in the Service. Having now finished my apprenticeship in the Airforce I realise that I am dissatisfied with the job and the Service…”
The request was supported by Flight Officer Russo who, in a note the same day, said:
“The member works reasonably well however he has expressed dissatisfaction from time to time. I consider the member to be genuine in his request. A reduction of service is considered appropriate. Forward for consideration.”
The Butterworth Wing Commander did not concur. While his recommendation was that the request could not be supported on the ground given, he went on to state:
“for discharge under the provisions of Depair Message PA461 of 23rd August 1973.”
On 7 September 1973 the recommendation of the Wing Commander was accepted.
For reasons that are not clear, despite agreeing that the veteran could become a “problem” no immediate action was taken to discharge him from the RAAF.
The final report prepared in December 1973 highlights the marked deterioration in the veteran’s behaviour and service. In this report, Flight Officer Russo whom the veteran had served under for 1 ¾ years, and who previously had been glowing in his praise, now gave a more sombre assessment. In his report of 11 December 1973 he observed:
“The members attitude to his work and the service has deteriorated considerably in the past couple of months. The member previously appeared quite happy with service life but he applied and has been granted a discharge though apparently dissatisfied with service life the member has never been unwilling to work overtime when the necessity arose. He requires only normal supervision during the performance of his duties. The member has not been of sober habits recently. Drink has not noticeably affected his work. The drinking problem appears to have resulted from the members dislike of his posting to Malaysia. The member has done good work in radio announcing in an effort to keep himself occupied in his leisure time. LAC HOLMES is generally a quiet person who gets on reasonably well with other members.”
By this time there was a different Commanding Officer at Butterworth, but he agreed with the assessment of Flight Officer Russo:
“I agree with the above comments. LAC Holmes has lost interest in the Service and, while keen enough to play his part, has allowed himself to over-indulge in alcohol. He was very recently hospitalised as a result of this over-indulgence. He is assessed as an AVERAGE tradesman.”
The Applicant’s case is that the veteran died from alcohol abuse, which, it is claimed, commenced in 1973 – Exhibit 1 T4 p. 48. It is also submitted that the veteran was physically, mentally and sexually abused whilst serving at Butterworth, and this abuse was the reason he began drinking to excess – ACS paras 3 – 4
It is the Applicant’s contention that the veteran’s alcohol abuse was directly caused by the traumatic experiences he suffered whilst rendering service in Malaysia.
Reference can first be made to a letter sent by the Applicant to the Department of Veterans Affairs dated 9 November 2016. In this letter the Applicant outlines the veteran’s service experiences in Malaysia and how they are said to have impacted on his life and their relationship – Exhibit 1 T27 pp. 157 – 158. It should be noted that the Applicant has spelt the veteran’s first name as “Jeffery”:
“My husband Jeffery Holmes was an active member of the Royal Australian Air Force from January 8, 1968 until February 22, 1974. Jeffrey and I met in 1992 while I was working in a Hotel in Ipswich. At that time Jeffery was employed as a Senior Sergeant within the Ipswich Police Department.
As our relationship progressed we commenced a de facto relationship and it was at this time that Jeffery introduced me to his parents and other family members. Jeffery’s mother had confided in me during one of our visits that she felt Jeffrey’s and my relationship would not last as Jeffery was a big drinker of alcohol. Jeffery’s mother also confided that his first wife committed suicide as a direct result of his drinking alcohol and resulting behaviour towards her. Jeffery’s second wife after giving birth to their first child found solace in numerous affairs and then divorced him due to the excessive alcohol consumption, loss of libido and resulting bad behaviour toward her. I was aware of this information when I decided to live with Jeffery as I truly believed he was an honest man.
Throughout our early relationship and ensuing marriage I experienced Jeffery frequently being very restless at night in his sleep kicking me aggressively and waking up in hot sweats. I would also hear him crying whilst he was asleep. The cry was a guttural blood curdling cry and shaking all over to the point he was incontinent of urine.
On one particular episode as was becoming more concerned for Jeffery’s health, after showing [sic] him and reassuring him I sat down and pressed him to open up to me as to why he was experiencing these frequent distressing episodes. It was at this time he did open up and explained to me why he had these frequent episodes and drank alcohol heavily.
Jeffery recounted his experience whilst serving in the RAAF in Malaysia to me. On experience he was wrapped up in a mattress and thrown out of window by his peers. As a direct result he incurred an injury to his neck that plagued him till his passing. Due to fear of retribution from his peers, greater than the injury sustained itself, Jeffery stated it was a football injury.
During his service with the RAAF Jeffery explained to me he would sleep in his locker as he deemed it to be the only safe place from his taunting peers. On several occasions Jeffery continued to explain, that he had been so fearful of his personal safety that he would remained [sic] in his locker for long periods of time. So great was his fear of toucher [sic] at the hand of his peers he would remain in his locker despite needing to go to the toilet he would remain in the locker and have his bowels open and pass urine.
On numerous occasions when his peers found him they dragged him out of his bed stripped him naked, urinated on him and then hosed him down with cold water. In addition, these same peers found it amusing to poke him all over his body including penetrating his anus with their fingers. There were other on occasion as he explained to me that when his peers realised he was hiding in his locker they would roll it around on the floor with him inside including pushing the locker down a flight of stairs with Jeffery inside. This torture was enforced on him on each occasion for long periods of time.
On other occasions Jeffery encountered were his peers placing snakes in his bunk and other occasions defecating in his bunk.
With Jeffery opening up to me it helped me and gave me some understanding of why he was as he was and needed to drink to the excess he did.
As a result of this continuing and unrelenting torturous treatment by Jeffery’s peers during this time of service with the RAAF he commenced drinking large quantities alcohol in an effort to deaden his pain. As time went on Jeffery required a greater amount of alcohol to deaden the pain and this continued to his passing.”
In 2002 the veteran completed an Alcohol Questionnaire which formed part of a claim under the Act. In that Questionnaire the veteran stated that he began to consume alcohol on a regular basis in 1973. He claimed that he drank beer and spirits daily and would consume 6 – 8 standard bottles or large cans of beer per day as well as spirits. The veteran estimated that he drank 6 – 8 standard drinks each day – Exhibit 1 T4 pp. 48 – 49.
The veteran stated that he had never consumed alcohol prior to rendering service with the RAAF. In addition, he stated that he would attend the Boat Club at Butterworth where drinking and entertainment was provided at “token” cost. The veteran said he drank to excess with other RAAF personnel and once he commenced drinking, he lost control – Exhibit 1 T4 p. 49.
The veteran was admitted to No 4 RAAF Hospital Butterworth on 25 May 1973. For two days prior to being admitted, the veteran was having “dizzy bouts”. Squadron Leader Dr D G Leitch who examined and treated the veteran made notes on his condition from the time of his admission until the time of his discharge.
Dr Leitch observed the following – Exhibit 1 T3 p. 42:
“P/S several dizzy spells in last 24 hours.
21 yr old who drinks heavily i.e. > 1 bottle of vodka/day and has apparently been drinking heavily since arriving here 16/12 ago…”
Dr Leitch made the following observations after the veteran was discharged on 29 May 1973 – Exhibit 1 T3 pp. 17, 40:
“This is a single, immature airman who has not adjusted to his situation in Malaysia and who drinks a great deal of alcohol because he says there is nothing else to do. I doubt whether he has a serious drinking problem but it does seem unlikely he will adjust to Malaysia and if he stays here it is conceivable that he may develop a serious drinking problem. I therefore suggest that consideration be given to early repatriation. He was discharged from hospital on 29 May 1973.”
Despite this recommendation the veteran was not immediately repatriated to Australia.
In a later Outpatient Consultation Record dated 24 July 1973 Dr P M Graham (Flight Lieutenant Physician) made the following observations – Exhibit 1 T3 p. 21:
“This member is still imbibing. However he does seem to have reduced his alcoholic intake and is much improved on his condition when he was an in-patient in late May.
LFT appeared to have returned to normal (see folio 7).
Examination showed that his hepatomegaly has receded and he has no clinically evidence at present of liver disease.
My impression of this airman is unchanged.
He is immature inadequate personality and appears to be fully adapting to his stay in Malaysia. However as he is due to be repatriated in a few months I feel it is reasonable to leave him here and to review him in the clinic in 3 months.”
Unfortunately, the optimism expressed by Dr Graham was unfounded. On 4 December 1973, the veteran was again admitted to No 4 RAAF Hospital Butterworth suffering from alcoholic gastritis. He was not discharged until 10 December 1973 – Exhibit 1 T3 p. 44.
The veteran was examined by Dr Tom Bell, Consultant Psychiatrist, on three occasions in the 2003 – 2004 period. In his report dated 23 January 2004, Dr Bell noted that the veteran told him that during his service at Butterworth his grandfather died and his best friend was killed in a motor vehicle accident. The veteran claimed that he attempted suicide on two occasions whilst serving in Malaysia – Exhibit 1 T15 p. 87. The service and medical records of the veteran do not disclose any record of suicide attempts.
After being discharged from the RAAF in February 1974 the veteran worked for General Motors Holden on an assembly line and maintained oxywelding gear for welding equipment and hire – Exhibit 1 T11 p. 72.
The veteran joined the Queensland Police Force in December 1975 and served until October 1993. He reached the rank of Detective Sergeant – Exhibit 1 T26 p. 146.
It was whilst serving at Ipswich that the veteran first met the Applicant who was working in a hotel. Whilst it is not entirely clear when the veteran and the Applicant first met and became a couple, it appears from the Applicant’s testimony that it was in the 1991 – 1992 period. This is consistent with the veteran’s account to Dr Larder, that he met the Applicant in 1991 – Exhibit 1 T26 p. 152. In short, the veteran and the Applicant had known each other, and had formed a de-facto relationship for approximately a decade before their 2002 marriage.
At some time in the 1994 – 1995 period the veteran commenced working for the RACQ as an assessor and investigator on a full-time basis. After a work-related dispute, the veteran ceased working in circa 2006 – 2007, and did not engage in remunerative employment from that time until his demise.
THE HEARING
A Hearing was convened in Brisbane on 18 December 2018. The Applicant was represented by Mr Brian O’Neill and the Respondent by Mr Bruce Williams. The Applicant appeared and gave evidence. The only witness called was Dr Benjamin Duke, Consultant Psychiatrist.
LEGAL PRINCIPLES
Where the death of a member of the Defence Forces is defence-caused, the Commonwealth is liable to pay a pension by way of compensation to the dependants of the member in accordance with the provisions of the Act – s 70(1).
For the purposes of the Act, and so far as is relevant to this matter, the death of a member of the Forces shall be taken to be defence-caused if:
(a)the death arose out of, or was attributable to, any defence service of the veteran – s 70(5)(a);
(b)the death is deemed by s 70(6) to be a defence-caused disease – s 70(5)(c);
(c)the disease from which the veteran died:
(i)was contracted during any defence service, but did not arise out of that service; or
(ii)was contracted before the commencement of the defence service, but not during such period of service;
and, in the opinion of the Respondent, the disease was contributed to in a material degree by, or was aggravated by, any defence service of the veteran, being service rendered after the veteran contracted the disease – s 70(5)(d).
Subsection (9) is not relevant to this matter, and has not been raised by the Respondent.
It will be noted that s 70(5)(a) requires the Tribunal to determine if the death arose out of or was attributable to any defence service. There are numerous judicial pronouncements on the width of this test which imposes on an applicant veteran a less demanding task. This was explained by McHugh, Gummow, Callinan and Heydon JJ in Roncevich v Repatriation Commission (2005) 222 CLR 115 as follows (126/[27]):
“27. The use disjunctively in s70(5) of the expressions ‘arose out of’ and ‘attributable’ manifest a legislative intention to give ‘defence-caused’ a broad meaning, and certainly one not necessarily to be circumscribed by considerations such as whether the relevant act of the appellant was one that he was obliged to do as a soldier. A causal link alone or a causal connexion is capable of satisfying the test of attributability without any qualifications conveyed by such terms as sole, dominant, direct or proximate.”
The Full Federal Court in Gilkinson v Repatriation Commission (2011) 197 FCR 102 held that “defence-caused” is to be given a broad meaning. Perram, Nicholas and Robertson JJ said (110/[36] – [38]):
“36. Fifth, the learned primary judge’s conclusion rests on the proposition that s196(14)(b) requires the appellant’s operational service to be the dominant or effective cause of the factor causing or contributing to the appellant’s disease.
37. In our view this construction is inconsistent with Roncevich at [27] where the plurality in the High Court said that the use disjunctively in s 70(5) of the expressions ‘arose out of’ and ‘was attributable to’ manifested a legislative intention to give ‘defence-caused’ a broad meaning…
38. Her Honour’s construction is also, in our view, inconsistent with Law where the Full Court at 150-151 considered the expressions ‘has arisen out of’ and ‘is attributable to his war service’ then to be found in s 101(1)(b) of the Repatriation Act 1920 (Cth). As to the former of these expressions, ‘has arisen out of’, the Full Court said those words required a consequential relationship and that it was not useful to attempt to put a gloss upon the words of the Act by saying that the causal relationship must be ‘immediate’, ‘direct’ or ‘proximate’ or by saying it connotes a ‘real’, ‘sole’ or ‘dominant’ cause. Their Honours said that the expression ‘arisen out of’ was different to ‘caused by’ or ‘results from’ and was satisfied if some less proximate causal relationship was established rather than a relationship which was fanciful or so tenuous as to preclude its consideration as answering the description ‘arising out of’. As to the expression ‘is attributed to’ their Honours said the cause need not be the sole or dominant cause and that it was sufficient to show ‘attributability ‘if the cause is one of a number of causes provided it is a contributory cause.”
Nonetheless, there must be a causal connection with defence service, rather than simply a temporal connection: Repatriation Commission v Tuite (1993) 39 FCR 540. Davies J made the following observations (541 – 542):
“if an injury or disease is claimed to have arisen out of or be attributable to a serviceman’s period of camp life, the question will usually be whether life in camp was a contributing cause and not merely the setting in which the event occurred. Denning J has said that the service ‘must be a cause as distinct from being part of the circumstances in or on which the cause operates. See Marshall v Minister for Pensions [1948] KB 106 at 110…
If the circumstances of eligible war service provide an operative cause contributing to the serviceman’s injury or disease, it matters not that the relevant circumstances, such as peer pressure to smoke, could be found elsewhere than in camp life. The question in each case, and it is a question of fact for the administrative decision-maker, is whether the eligible war service contributed causally to the injury or disease.”
The standard of proof relevant to this matter is “reasonable satisfaction” – s 120(4). This is the civil standard of proof, which is often referred to as the balance of probabilities or preponderance of probability – Repatriation Commission v Smith (1987) 15 FCR 327 at 334 – 335.
Subsection 120B(3) of the Act requires that “reasonable satisfaction” be assessed by means of a two-step inquiry:
“(3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i) a Statement of Principles determined under subsection 196B(3); or
(ii) a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities connected with that service”.
Section 196B of the Act establishes the Repatriation Medical Authority (the Authority) whose main function is to determine SoP’s. If the Authority is of the view that on the sound medical-scientific evidence available that it is more probable than not that a particular disease, injury or death is related to the relevant service rendered by the veteran, the Authority must determine an SoP setting out:
· the factors that must exist; and
· which of those factors must be related to the service rendered by the veteran,
before it can be said that, on the balance of probabilities, an injury, disease or death is connected with the circumstances of that service – s 196B(3).
The relevant SoP in this matter is No 49 of 2017 – Alcohol Use Disorder (Balance of Probabilities) which revoked and replaced SoP 2 of 2009 – Alcohol Dependence and Alcohol Abuse as from 18 September 2017.
Subsection 7(2) of SoP 49 of 2017 defines “alcohol use disorder” as a disorder of mental health meeting the following diagnostic criteria:
“A problematic pattern of alcohol use heading to a clinically significant impairment or distress, as manifested by at least four of the following, occurring within a 12-month period:
A. Alcohol is often taken in larger amounts or over a longer period than was intended.
B. There is a persistent desire or unsuccessful efforts to cut down or control alcohol use.
C. A great deal of time is spent in activities necessary to obtain alcohol, or recover from its effects.
D. Craving, or a strong desire or urge to use alcohol.
E. Recurrent alcohol use resulting in a failure to fulfil major role obligations at work, school, or at home.
F. Continued alcohol use despite having persistent or recurrent social and interpersonal problems caused or exacerbated by the effects of alcohol.
G. Important social, occupational or recreational activities are given up or reduced because of alcohol use.
H. Recurrent alcohol use in situations in which it is physically hazardous.
I. Alcohol use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by alcohol.
J. Tolerance, as defined by either of the following:
(i)A need for markedly increased amounts of alcohol to achieved intoxication or desired effect; or
(ii)A markedly diminished effect with continued use of the same amount of alcohol.
K. Withdrawal, as manifested by either of the following:
(i)the characteristic withdrawal syndrome for alcohol; or
(ii)alcohol (or a closely related substance, such as a benzodiazepine) is taken to relieve or avoid withdrawal symptoms.”
Subsection 7(3) of the SoP provides that alcohol use disorder, in relation to a veteran, includes death from a terminal event or condition that was contributed to by the veteran’s alcohol use disorder.
Section 9 outlines the Factors, at least one of which must exist before it can be said that, on the balance of probabilities, death from alcohol use disorder is connected with the circumstances of a veteran’s relevant service.
The following Factors are of potential relevance in this matter :
(a)9(1): having a clinically significant disorder of mental health as specified at the time of the clinical onset of alcohol use disorder;
(b)9(2): experiencing a category 1A stressor within two years before the clinical onset of alcohol use disorder;
(c)9(4): experiencing the death of a significant other within the ten years before the clinical onset of alcohol use disorder;
(d)9(6): experiencing a category 2 stressor within the six months before the clinical onset of alcohol use disorder; and
(e)9(13): inability to obtain appropriate clinical management for alcohol use disorder.
The term “clinically significant disorder of mental health as specified” is defined in Schedule 1 to mean one of 25 listed conditions, which is of sufficient severity to warrant ongoing management. The second of the listed conditions is adjustment disorder. In addition, paragraph (e) specifies anxiety disorder and paragraph (i) specifies depressive disorder. Finally, paragraph (x) lists substance use disorder.
A “category 1 stressor” is defined as one of three severe specified traumatic events. For present purposes the only potentially relevant stressor is (b), namely:
“(b) being subject to a serious physical attack or assault including rape and sexual molestation.”
A “category 2 stressor” is likewise defined in Schedule 1, and means one of seven listed negative life events, the effects of which are chronic in nature and cause the person to feel ongoing distress, concern or worry. Of potential relevance are the following:
(a)being socially isolated and unable to maintain friendships or family relationships, due to physical location;
(c) having concerns in the work environment including ongoing disharmony with fellow work colleagues, perceived lack of social support within the work environment, perceived lack of control over tasks performed and stressful workloads.
Subsection 10(1) of SoP 49 of 2017 provides that the existence in a person of any Factor referred to in s 9, must be related to the relevant service rendered by the person. A Factor causing, or contributing to, a death is related to service rendered by a veteran it satisfies one or more of the tests specified in s 196B(14) of the Act.
CONSIDERATION
Introduction
The Tribunal must now consider SoP No 49 of 2017. The starting point is to determine the veteran’s kind of death, and then determine if his death falls within the meaning of “alcohol use disorder” in SoP 49 of 2017. If the veteran’s death falls within the definition, the next step is to consider the Factors that must exist, which in this instance are set out in s 9 of the SoP. If one or more Factors exist, the Tribunal must then ascertain if that Factor or those Factors are related to the relevant service rendered by the veteran – s 10(1) of SoP 49 of 2017.
Two other matters need to be ventilated. First, the Tribunal is required to approach the question of the Applicant’s entitlement to receive the claimed pension by reference to the SoP in force at the time it makes its decision – Repatriation Commission v Gorton (2001) 110 FCR 321.
If, however, a negative answer is evinced, then it may be necessary to consider if the SoP that was in force at the time when the Respondent first rejected the Applicant’s claim. This inquiry is only necessary if it is contended that an applicant has an accrued right under the earlier SoP.
In this matter there was another SoP in force when the Respondent first rejected the Applicant’s claim on 1 September 2016, namely SoP No 2 of 2009 as amended by SoP No. 30 of 2014. This SoP was also in force when the Board made its decision on 13 July 2017. Unfortunately, as is often the case in veterans’ entitlement matters, some confusion can arise due to the remaking of SoP’s and with the consequent changes in section numbering and wording.
No submission was made in this matter that the Applicant had an “accrued right” under SoP 2 of 2009, but where appropriate I have also inserted references to the comparable provisions in SoP 2 of 2009.
Second, the question of whether the veteran was suffering from a service-related adjustment order is discussed below. In order to deal with that question reference will be made to the SoP dealing with adjustment disorder, namely SoP 24 of 2016.
One matter needs to be addressed at the outset. SoP No 49 of 2017 defines a clinically significant disorder of mental health by reference to 25 named mental health conditions. One of those conditions is adjustment disorder.
In comparison when SoP No. 2 of 2009 was first promulgated it referred to alcohol dependence and alcohol abuse. The description of those terms was made by reference to the diagnostic criteria in DSM-IV-4, and there was no reference to specific mental health conditions. This SoP was significantly amended by SoP No. 30 of 2014, which deleted the terms alcohol dependence and alcohol abuse and replaced them with the term “alcohol abuse disorder”. This term was defined by reference to the diagnostic criteria derived from DSM-5. This definition is mirrored in SoP No. 49 of 2017.
Two new definitions were inserted into No. 2 of 2009 by SoP 30 of 2014, namely “a clinically significant psychiatric condition” and “a specified disorder of mental health”. Importantly, neither of these definitions referred to an adjustment disorder, even though the latter definition listed 17 mental health conditions.
Accordingly, when the Board dealt with this matter, it applied an SoP which was mute on the question of whether an adjustment disorder fell within the definition of a specific disorder of mental health.
Any doubts about this matter have been resolved by the specific insertion of an adjustment disorder into the list of significant disorders of mental health in SoP No 49 of 2017.
Kind of death
It is not disputed that the veteran’s kind of death was alcoholism – Respondent’s Outline of Submissions (ROS) para 20, Transcript (Tr.) 18.12.2018 p. 12.
Alcohol use disorder
The definition of alcohol use disorder as contained in s 7(2) of SoP 49 of 2017 is set out above.
In any event, it is not contested that the veteran’s condition falls within the definition of “alcohol abuse disorder” in SoP 49 of 2017.
Clinical onset
The next task is to ascertain the timing of the clinical onset of the veteran’s alcohol abuse disorder.
Reference can first be made to the judgment of Branson J in Repatriation Commission v Cornelius [2002] FCA 750. Her Honour said [26]:
“Before it could form the above opinion, the Tribunal was required to consider the meaning of the expression ‘clinical onset’ as used in clause 5(a) of the SoP. The Tribunal accepted the appropriateness of the approach adopted by the Tribunal in Robertson v Repatriation Commission (AAT 12666, 2 March 1998), namely that:
‘…there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present…’
By inference the Tribunal rejected the view of ‘clinical onset’ taken by Professor Sambrook in his report of 6 March 2001. Neither party challenged the appropriateness of the meaning which the Tribunal attributed to the expression ‘clinical onset’ in clause 5(a) of the SoP…”
It is therefore necessary for the Tribunal to have before it “evidence from a medical practitioner determining for the purposes of the …SoP whether the disease is or was present at a particular time” – Repatriation Commission v Brady [2007] FCA 1087 at [36].
In Repatriation Commission vMilenz (2006) 93 ALD 107 Finn J had to consider the term “clinical worsening”. His Honour noted that in the particular SoP he was considering that term was not defined, but went on to determine (at [35]):
“What is clear, in my view, is that the Tribunal misconstrued what was comprehended by the clinical worsening requirement of par 5(d) of the SoP. That requirement imposed a medical-scientific standard, not a lay standard. Though the Tribunal found a clinical worsening of Mr Milenz’s alcohol abuse, it did not address whether there was a worsening in the disease as defined and manifest. It simply inferred a worsening because, ‘after operational service, the quantity, type and frequency of alcohol consumed was far greater’. These are not features or manifest symptoms of the disease defined in par 2(b) of the SoP.”
The same medical-scientific standard is required for assessing the date of clinical onset in this matter.
As previously noted, the veteran claimed in his Alcohol Questionnaire that he only began drinking alcohol on a regular basis after he was posted to Malaysia.
The veteran was examined by three psychiatrists in the 2002 – 2008 period, and his records were examined and an assessment made by a fourth (Dr Duke) in 2018.
The first psychiatrist, Dr Rose, opined in his report of 15 July 2002 that the veteran was suffering from Alcohol Dependency but that “this probably commenced before service at Butterworth and on joining the RAAF” – Exhibit 1 T11 p. 75.
The veteran was examined by Dr Tom Bell, Consultant Psychiatrist, and the veteran told Dr Bell that he first started drinking heavily in the RAAF and it was particularly noticeable in Malaysia between 1972 and 1974 – Exhibit 1 T15 p. 87. Dr Bell opined that the veteran’s “pattern of alcoholism was well and truly allowed to become established during his last 12 months in Malaysia.” – Exhibit 1 T15 p. 88. Dr Bell went on to observe – Exhibit 1 T15 p. 90:
“It appears Mr Holmes’ alcoholism was triggered by his exposure to a culture of heavy drinking which existed in the early 1970s at the Butterworth Base in Malaysia.”
A similar opinion was given by Dr Duke who in his report of 14 May 2018 said – Exhibit 5 p. 3:
“From the material available it would appear that Mr Holmes developed a number of psychiatric conditions through his life. The first of these appears to be alcohol dependence, which developed at some stage prior to May 1973. It is unclear whether Mr Holmes’ level of alcohol consumption prior to his deployment to Malaysia was of a sufficient quantity and with associated consequences to justify a diagnosis of alcohol dependence, but by the time he was admitted to hospital in May with the physical consequences of alcohol use the relevant criteria would have been met. From the material available it would appear that Mr Holmes continued to suffer with alcohol dependence, or what is now considered alcohol abuse disorder under the DSM-5 for the remainder of his life.”
Later in his report he added – Exhibit 5 p. 3:
“I note that I have not interviewed Mr Holmes and that my opinions are based purely on a file review of the material listed above. As indicated in my previous answer I am unable to clearly determine the time of clinical onset of his alcohol dependence due to a lack of information about the quantity of alcohol Mr Holmes was consuming prior to his deployment to Malaysia. However there is no doubt that he would have met the full criteria for alcohol dependence (or in DSM-5 diagnostic criteria, alcohol use disorder) by May 1973. He may have had alcohol abuse (DSM-IV criteria) prior to deployment, but I am unable to say.”
Dr Duke also testified on 18 December 2018 and was asked a series of questions about the date of clinical onset. Dr Duke did not resile from the above statements and said – Tr. 18.12.2018 p. 37:
“I guess, my reading of the material available to me was that yes, there is evidence that he is drinking heavily, but there is no evidence that was available to me, to suggest those other criteria were met and it wasn’t until he was presenting to hospital with physical health consequences of his alcohol consumption, that I was able to say, ‘Yes, he crosses over that threshold for meeting the criteria for dependence.”
The conclusions reached by Drs Bell and Duke comport with the evidence presented to the Tribunal. There are no reports of the veteran drinking heavily before 1973. Every report on his conduct and performance from 1968 until 1972 fails to mention alcohol consumption, even though other negative aspects of his personality were commented on. Importantly, the first full report of the veteran’s conduct after he was posted to Butterworth which was written on 1 July 1972, fails to mention any issues with either alcohol consumption.
It is only after the veteran’s admission to hospital on 25 May 1973 having experienced “dizzy bouts” after excessive drinking, that there reports appear from his superiors about his alcohol habits. Indeed, Dr Leitch noted at the time that the veteran has “been drinking heavily since arriving here 16/12 ago…” – Exhibit 1 T3 p. 42.
Without being critical, the report of Dr Rose is difficult to reconcile with the facts as presented. Dr Rose opined that that the “fact that Mr Jeffrey Holmes’ father was a heavy drinker and that his own father was in an Air Force culture of heavy drinking, indicates to me that Mr Holmes became an alcoholic because alcohol was available and he was under considerable peer pressure to drink heavily” – Exhibit 1 T11 p. 74.
The only evidence of the veteran’s father’s drinking habits that were before Dr Rose came from the veteran. However, the Tribunal also had the benefit of the Applicant’s testimony. It should be noted that the Applicant worked a lifetime in a hospitality industry serving alcoholic beverages and knew the veteran’s father. Further, it transpired that both the Applicant’s father and veteran’s father knew each other and had both served in the RAAF. I asked the Applicant the following question – Tr. 18.12.2018 p. 27:
“I read in the material here that he was a bit of a big drinker as well, is that right – his father? ---- It wasn’t – he used to just like his couple of glasses of port at night time.
But you wouldn’t regard him as a heavy drinker? ----- No, no, not pop, no.”
The Tribunal then finds that the date of clinical onset of the veteran’s alcohol abuse disorder was 25 May 1973.
The Factors that must exist
Section 9 of SoP 49 of 2017 sets out 13 Factors, at least one of which must exist before it can be said that, on the balance of probabilities death from alcohol use disorder is connected with the circumstances of the veteran’s service. In this matter, the Factors that need to be considered were outlined in [69]
Factor 9(1): Clinically significant disorder of mental health
As previously noted, the definition of “clinically significant disorder of mental health as specified” in Schedule 1 of the SoP lists 25 conditions with the requirement that one of which is of sufficient severity to warrant ongoing management.
Of relevance to this matter is paragraph (b) of the definition, namely adjustment disorder.
Dr Duke in his report of 14 May 2018 put forward a diagnosis of adjustment disorder and provided the following explanation – Exhibit 5 p. 3:
“Additionally, Mr Holmes appears to have developed symptoms consistent with an adjustment disorder with depressed mood following his overseas deployment. The effects of this deployment, and the contributing nature of his emotional immaturity and inability to cope with being away from home, is clearly documented throughout his medical records and appears to be the main reason why multiple recommendations for early repatriation to Australia were made throughout his time in Malaysia.
It is likely that the adjustment disorder would have resolved following his return to Australia in February of 1974. Since that time he appears to have also had a number of recurring depressive episodes (major depressive disorder, recurrent as per the DSM-IV/5 criteria) although these appear to be unrelated to his military service. Although his alcohol use would have created a vulnerability to recurring depression I think it more likely that life events have been the main factors in the development of these depressive episodes.”
A similar conclusion was reached by Dr Bell, who opined – Exhibit 1 T15 p. 87:
“You have raised the question of whether Mr Holmes suffered from any other type of psychiatric illness during the time he was in Malaysia. I think it would be fair to say, although difficult to prove, of course, that he did suffer during that period from what is now termed an Adjustment Disorder with anxiety and depressed mood. That would be the best way we could formulate his emotional distress at that time if we were to apply today’s psychiatric knowledge and classification system to the problems which existed then….This condition could have promoted his excessive consumption of alcohol.”
Dr Bell concluded by stating – Exhibit 1 T15 p. 90:
“Mr Holmes pattern of heavy drinking at that time would undoubtedly have been compounded by his emotional distress at being in Malaysia, his feelings of being unable to cope with life there and about his longing to be back in Australia with his parents and friends…”
This conclusion is supported by the observation of Dr Leitch, who noted in his report of 5 June 1973 that the veteran was “a single, immature airman who has not adjusted to his situation in Malaysia” – Exhibit 1 T3 p. 6.
This diagnosis is preferred to that given by Dr Rose, who did not believe the veteran was suffering from any psychiatric illness during his service at Butterworth. As noted above, it is clear that the veteran was distressed during his time at Butterworth, and due to a combination of factors the evidence suggests he developed a psychiatric condition. In contemporary psychology the label for that condition is an adjustment disorder.
Reference was made in the decision of the Board to SoP 24 of 2016, which is the SoP for Adjustment Disorder.
Subsection 7(2) of SoP of 2016 sets out a definition for the condition which is based on the diagnostic criteria contained in DSM-5. When Dr Duke opined that the veteran was, on the balance, suffering from an adjustment disorder whilst serving in Malaysia, he did so by reference to the criteria in DSM-5. In fact, the Question posed to him was as follows: “Provide your diagnosis. Address the diagnostic criteria, derived from DSM-5 for each condition” – Exhibit 5 p. 3. It flows, then, that the adjustment disorder diagnosed by Dr Duke comports with the definition of an adjustment order in s 7(2) of SoP 24 of 2016.
Having concluded, then, that the condition of adjustment disorder in SoP 49 of 2017 comports with the definition of adjustment disorder in SoP 24 of 2016, the next logical step is to address the relationship to service issue.
However, some confusion has arisen, because the Board seemingly added an extra compliance step for the Applicant. The Board, referred to the Factors for adjustment disorder in SoP 24 of 2016 and implied that before the Applicant could move to the relationship question, it was necessary to satisfy the Factors for both SoP 24 of 2016 and SoP 49 of 2017.
It is clear that one of the main objects of the SoP regime is to avoid the sort of problem that arises in this case, namely conflicting medical opinions. One of the great advantages of the SoP regime is to by-pass this conundrum and to concentrate on the Factors in the relevant SoP. In these circumstances the tribunal of fact is agnostic about the conflicting medical opinions and relies on the criteria determined by the RMA.
This matter, however, raises a particular problem. The relevant SoP (No 49 of 2017) lists as one of the Factors a disorder of mental health, and then defines what that term means. The question which arises is whether a diagnosis that a veteran has one of those conditions concludes the issue, or whether the tribunal of fact must then ascertain if there is a SoP on that condition and determine if one or more of the specified Factors is made out. In short, in this matter does the Applicant have to satisfy the Tribunal that not only was the veteran suffering from an adjustment order as diagnosed, but further satisfy one or more the Factors in the SoP for an adjustment disorder.
Having regard to the beneficial nature of the legislation, the preferable view is that such an exercise is not necessary. However, this is a moot point as I will accept that such a process is required, and ascertain if one or more of the Factors in SoP 24 of 2016 are satisfied based on the evidence presented.
Section 9 of SoP 24 of 2016 set out the Factors that must exist. Eleven Factors are enumerated, and with two exceptions, mirror the Factors No. 49 of 2017. One Factor is of particular relevance, namely having a severe, chronic medical condition within the three months before the clinical onset of adjustment.
The term “severe, chronic medical condition” is defined in Schedule 1 to mean:
“an illness which substantially impacts on social, occupational other areas of functioning; and requires on-going daily or almost daily management of symptoms. This management may include, but is not limited to, assistance with activities of daily living; bed rest; dietary modification; drug therapy; nursing care; oxygen therapy or physiotherapy. This management must be supervised by a registered medical practitioner.
Severe, chronic medical conditions do not usually resolve spontaneously, are rarely cured completely and may progress to life threatening illnesses…”
Dr Duke refers to the veteran having a number of psychiatric conditions throughout his life, and specifically refers to alcohol dependence which arose prior to May 1973. It would appear that the veteran became depressed when he was posted to Butterworth and took solace in drinking. Then commenced a spiral of alcohol abuse which in turn led to psychiatric problems, which in turn led to a worsening of his alcohol abuse. Whilst it is difficult, years after the event to put a label on this condition, it is clear that the veteran was a clinically sick man in the 1972 – 1973 period, and that he would have developed the symptoms of an adjustment disorder before May 1973. Dr Duke opined that it was “likely he developed symptoms of adjustment disorder with depressed mood at some stage between December 1972 and May 1973.” – Exhibit 5 p. 4. Insofar as the veteran’s drinking commenced after his posting to Butterworth, the incubus for the development of an adjustment disorder would have been at some juncture in the period after February 1972 and certainly before his first alcohol induced hospitalisation.
I therefore find that the veteran had a chronic medical condition within three months prior to the clinical onset of an adjustment disorder, and I accept Dr Duke’s diagnosis that the clinical onset occurred after his deployment to Butterworth.
Factor 9(2): Category 1 A stressor
The Applicant’s letter to the Department of Veterans’ Affairs quoted earlier (Exhibit 1 T27 pp. 157 – 159), her Statement dated 12 December 2018 (Exhibit 3) and her testimony on 18 December 2018, all outline accounts provided by the veteran of a pattern of extreme bastardisation involving ongoing physical and sexual assaults, bullying, intimidation and abuse whilst he was serving at Butterworth. As described, these events fall within the definition of a Category 1 stressor in SoP 49 of 2017 (and SoP 9 of 2009) namely:
“(b) being subject to a serious physical attack or assault including rape and molestation”
The Tribunal does not accept that these events transpired in the manner described by the Applicant. In reaching this conclusion the Tribunal does not doubt the truthfulness and sincerity of the Applicant’s account. She presented as a witness of credit. However, her account is based entirely on what the veteran told her, and there are substantial problems with accepting the accuracy of his account.
First, the veteran, when appearing before the Board in 2004, specifically claimed that he was subject to various forms of bastardisation whilst undergoing training at Wagga Wagga – Exhibit 1 T2 B10. The veteran, however, did not refer to any bastardisation, whilst serving at Butterworth. If the veteran was prepared to publicly disclose the claimed bastardisation, he was subjected to at Wagga Wagga it is inconceivable that he would not also disclose other incidents.
Second, the veteran’s service records do not disclose any record of him being subjected to bullying. This is, perhaps, not surprising particularly as the veteran would not have likely to disclosing such behaviour. However, what is telling is the description of the veteran’s relationship with his peers whilst serving at Butterworth. Flight Officer Russo, in his 1 July 1972 report, observed that the veteran was by nature “generally quiet but he gets on very well with others and is very cooperative.” One year later, Flight Officer Russo observed that the veteran was “generally well liked by most”. There is absolutely no suggestion in these reports that the veteran was socially isolated and the subject of extreme bastardisation. On the contrary, the reports suggest that the veteran was a quiet and industrious individual who generally got on well with his peers, but who was, at times, immature and easily led.
Third, the veteran was examined by three psychiatrists over a number of years. Reading each of those reports, one is left no doubt that the veteran disclosed much of himself including the serious problems he was facing. Yet in none of those reports is there any suggestion that the veteran was subjected to the type of assault and maltreatment he recounted to the Applicant. Indeed, one could conclude to the contrary. Dr Bell, who penned a very sympathetic report noted – Exhibit 1 T15 p. 90:
“No one has suggested that Mr Holmes’ alcoholism was caused by a specific traumatic incident during his RAAF service.”
Dr Bell, when discussing the veteran’s Butterworth service, referred to the drinking culture, the death of the veteran’s grandfather and best friend, but fails to refer to any assault or maltreatment by his peers.
While the Tribunal accepts that the veteran would have been loath to disclose the details of the claimed assaults he was subjected to, nonetheless he did mention claimed events at Wagga Wagga and was extremely open with the psychiatrists about all aspects of his life. The Tribunal accepts that it is more likely than not that the veteran was subjected to bullying when he first enlisted and was posted to Wagga Wagga. At that time he was only 16 years of age and was sent to a remote New South Wales training school far away from his family and friends. The evidence discloses that the veteran was a quiet and immature youth, and the separation from his family and the dramatic change in lifestyle would have had a major impact on him. The fact that he was struggling during his apprenticeship is highlighted from the reports quoted earlier. However, there is no credible evidence that the veteran was being bullied by his peers in Malaysia.
The Tribunal therefore finds that the veteran did not experience a Category 1 A stressor whilst serving in Malaysia.
Factor 9(3): Category 1 B stressor
A category 1B stressor is defined in SoP 49 of 2017 (and SoP 2 of 2009) as meaning one of five listed severe traumatic events, including being an eyewitness to persons being killed or critically injured, viewing corpses, being an eyewitness to the infliction of atrocities, killing or maiming a person or being an eyewitness to, or participating in, the clearance of critically injured persons.
Dr Rose, having interviewed the veteran, made the following observations – Exhibit 1 T11 p. 72:
“Mr Holmes was never exposed to battle or trauma and he never saw anyone killed or wounded. He never saw any bad fights between people and was never witness to any bad accidents.”
No evidence was presented to the Tribunal which is inconsistent with the observations of Dr Rose.
On the basis of the evidence presented, the Tribunal finds that veteran did not experience a Category 1B stressor.
Factor 9(4): Experiencing the death of a significant other
Factor 9(4) is experiencing the death of a significant other within ten years before the clinical onset of alcohol use disorder.
The report of Dr Bell refers to the death of the veteran’s grandfather and best friend while he was serving at Butterworth – Exhibit 1 T15 p. 87. Prima facie, the death of these persons fits the requirement of Factor 9(4).
Factor 9(6): Category 2 stressor
As previously discussed, SoP 49 of 2017 defines a Category 2 stressor by reference to seven negative life events.
The following paragraphs do not apply based on the evidence presented:
(a)paragraph (b), long term relationship or marital problems;
(b)paragraph (d), experiencing legal issues;
(c)paragraph (e), financial hardship;
(d)paragraph (g), being a full-time caregiver.
Paragraph (a) refers to beings socially isolated and unable to maintain friendships. The evidence presented while suggesting that the veteran was a quiet person, nonetheless highlights that he was generally liked. The comments of Flight Officer Russo quoted in the context of a Category 1 stressor highlight this point. Dr Rose reported that the veteran informed him that whilst in Malaysia “he would involve himself in drinking competitions that were common amongst his mates” – Exhibit 1 T11 p. 72. The veteran informed Dr Leitch in May 1973 that he drank a lot of alcohol because “there is nothing else to do” – Exhibit 1 T3 p. 17. The evidence, therefore, does not disclose that the veteran was either socially isolated or unable to maintain friendships.
Paragraph (c) relates to concerns in the work and social environment including disharmony with fellow work colleagues, perceived lack of social support, perceived lack of control over tasks performed and stressful workloads.
There is no evidence that the veteran experienced any problems with the work he performed or the level of work required of him. Further, as previously noted, there is no reference in any of the contemporary material to the Applicant having a disharmonious relationship with his peers in Malaysia or earlier while serving in Australia.
The only negative life event listed which is of any potential relevance to the veteran is paragraph (f), namely having a family member or significant other experience a major deterioration in their heath.
Dr Bell reported that the death of the veteran’s grandfather and best friend, while he was serving in Malaysia, may have contributed to his distress.
Unfortunately, that is the only reference to these events. There is no contemporary record of the veteran’s reaction to these events, let alone any suggestion that they caused ongoing distress, concern or worry. There would be no doubt that the death of both of these persons would have had a negative impact on the veteran, and that his anguish would be have compounded by the fact that he was overseas and not able to seek solace and guidance from his family and close friends. However, to meet the requirement of experiencing a Category 2 stressor a veteran must experience ongoing distress, concern or worry. This test is not met by the onset of distress, concern and worry, which although severe, dissipates with the effluxion of time.
There is no evidence before the Tribunal that the veteran experience anything other than the normal grief experienced by the passing of a loved one.
The Tribunal therefore finds that the veteran did not experience a Category 2 stressor.
9(13): inability to obtain appropriate clinical management
The Applicant contended both before the Board and the Tribunal that the veteran’s alcohol use disorder was attributable to his failure to obtain clinical management of his condition whilst serving at Butterworth.
In support of this contention, reliance is place on the report of Dr Bell wherein he made the following observations – Exhibit 1 T15 pp. 87 – 88:
“Mr Holmes’ medical records from the early 1970s indicate that he was hospitalised and outpatient follow up was provided for his alcohol intoxication and continual heavy drinking.
In this regard I would refer to page 2 of Ms Kehoe’s ‘Reasons for Decision’ where she states, ‘I am therefore not satisfied that Mr Holmes was unable to obtain appropriate clinical management for his condition’. My reading of the medical records, however, provides an impression that Mr Holmes was hospitalised for purposes of detoxification from the effects of acute alcohol poisoning, which is all well and good, if not to say absolutely necessary to save his life. However, that is not would usually be understood as being ‘clinical management for alcoholism’ in any overall sense. I acknowledge that he was seen occasionally as an outpatient following his hospitalisation for detoxification, but it does not sound to me as though a great deal of therapy was undertaken to try to understand and to combat Mr Holmes’ problems and the reason for his excessive drinking at that time. There does not seem to have been any therapeutic plan to manage his condition.
The only recommendation that appears to have been made was that as ‘it does seem unlikely that he will adjust to Malaysia now and if he stays here it is conceivable that he may develop a serious drinking problem’, he should therefore be considerable for early repatriation to Australia. That was recommended by Squadron Leader D.G. Leach [sic] a Senior Specialist in Medicine in May 1973. However, in July 1973 he was seen by a Flight Attendant, [sic] P Graham…accepted that he was ‘poorly adapting to his stay in Malaysia’, but nevertheless considered it appropriate to leave him in Malaysia and not repatriate him to Australia. It was not until April 1974 that he was repatriated; a further 9 months of anguish for him.
Admittedly, it is much easier in retrospect to form opinions and give advice about what should have been done. However, it does appear clear, today, that he should have been returned to Australia at least 1 year before he was. His pattern of alcoholism was well and truly allowed to became established during his last 12 months in Malaysia. In other words, the ‘treatment’ and management of his situation altogether at that time did little to address his emotional distress and resort to the heavy use of alcohol, and almost certainly caused that pattern of alcoholic behaviour to become cemented, a situation from which he has never recovered.”
The evidence discloses that the veteran was admitted to hospital on 25 May 1973 after suffering dizzy spells. He was not discharged until 29 May 1973. The treating doctor, Squadron Leader Leitch doubted at that time he had a serious drinking problem, but went on to opine – Exhibit 1 T3 p. 40:
“it does seem unlikely he will adjust to Malaysia now, and if he stays it is conceivable that he may develop a serious drinking problem. I therefore suggest that consideration be given to early repatriation.”
This recommendation was not acted upon; in fact when the veteran was examined by Dr (Flight Lieutenant) Graham on 24 July 1973 it was noted that he was still “imbibing” though the alcohol intake had increased. Importantly, Dr Graham opined – Exhibit 1 T3 p. 47:
“My impression of this airman is unchanged. He is immature inadequate personality and appears to be poorly adapting to his stay in Malaysia. However as he is due to be repatriated in a few months I feel it is reasonable to leave him here and to review him in the clinic in 3 months.”
It is not clear if at any time during the veteran’s service in Malaysia he received any counselling or other assistance. What is clear is that instead of the veteran’s drinking habit resolving, it persisted and became entrenched. The veteran was again hospitalised for alcoholic gastritis on 4 December 1973 and remained in hospital until 10 December 1973.
Despite Dr Graham stating that he would be repatriated in a few months, the veteran remained in Malaysia until February 1974. When the veteran was discharged, his Statement of Service is marked: “Medically unfit for further Service” – Exhibit 1 T18 p. 110.
In determining if a veteran received appropriate clinical management, the Tribunal is required to make an assessment based on the standards of clinical management available at the particular time and then regarded by the medical profession as being appropriate. It is not open to the Tribunal to make an assessment based on contemporary standards and contemporary medical knowledge – Repatriation Commission v Wellington [1999] FCA 1552 at [13] – [16] per Marshall J.
A misdiagnosis or a failure to diagnose a condition, with a consequent failure to recommend appropriate medical intervention, can constitute an inability to obtain appropriate clinical management – Somerset v Repatriation Commission [2005] FCA 1399 at [37] per Greenwood J and Repatriation Commission v Money [2009] FCAFC 11 at [52] per Finn and Edmonds JJ.
However, a failure to treat an undisclosed alcohol treatment even though that condition could have been disclosed by appropriate tests and more observant behaviour, does not amount to inability to obtain appropriate clinical management – Boyes and Repatriation Commission [2004] AATA 17 at [29](c). However, if the condition should have been diagnosed, and applying the test of a reasonably competent medical practitioner then this can amount to a failure to provide appropriate clinical management.
It seems tolerably clear from each of these authorities, that if an inability to obtain appropriate clinical management can arise from acts of omission and ignorance, guided always by the then state of medical science, so too is a failure to provide clinical management which has been specifically recommended by a treating clinician. In such a case there has not been a failure to diagnose or a misdiagnosis, but a failure to act upon a diagnosis that was reasonably made.
The correct approach to ascertaining if there has been an inability to obtain appropriate clinical management was explained by Kenny J in Repatriation Commission v Wedekind [2000] FCA 649 at [12] as follows:
“In summary, before the AAT could be reasonably satisfied that Mr Wedekind’s pterygium was war-caused, it had to be satisfied that: (a) Mr Wedekind was unable to obtain appropriate clinical management for his pterygium during his war service, after having contracted the pterygium; (b) subject to (c), his inability to obtain appropriate clinical management was related to his war service; and (c) the pterygium was contracted while he was rendering war service and was contributed to in a material degree by, or was aggravated by, his was service. In the course of determining whether it was satisfied of those matters, the Tribunal needed to identify the appropriate date upon which Mr Wedekind contracted his pterygium; the appropriate form of clinical management; whether Mr Wedekind was unable to obtain that form of clinical management; whether that inability related to his service; whether the pterygium was contracted during his service; and whether it was contributed to in a material degree by, or was aggravated by, Mr Wedekind’s particular service.”
Having already determined that the veteran was suffering from an alcohol use disorder from the time of his first hospitalisation in May 1973, the next issue which arises is what was the appropriate clinical management of alcohol disorder by reference to the state of medical knowledge in 1973.
It is clear that the clinical management required was the repatriation of the veteran to Australia. This was necessary as the evidence discloses that his depressed mood and drinking were being driven by his isolation from his family and friends due to his posting to Malaysia. It is the case that the veteran is regularly referred to in the service documents as being “immature” and “quiet”. It is also the case that there is no record of the veteran voluntarily seeking medical assistance. However, what is undisputed is that by May 1973 the veteran had developed an alcohol use disorder, and Dr Leitch correctly diagnosed that if he was not repatriated to Australia it was conceivable he would develop a serious drinking problem.
The evidence in this matter stand in stark contrast to the factual matrix in Trotter and Repatriation Commission [2003] AATA 766. In that case Mr Trotter served in the Royal Australian Navy from 1986 until 1998. Mr Trotter had lodged a claim to have alcohol dependence recognised as a service-related disability. The evidence disclosed that Mr Trotter had a longstanding drinking problem, but there had been a failure to diagnose his condition. Evidence was presented that the RAN had at time Mr Trotter served, a regimen of clinical management for the care of personnel consisting of assessment, education, counselling by a general practitioner, referral to counselling services specialising in alcohol abuse, optional referral to Alcoholics Anonymous and attention to co-morbidities – [34].
The Tribunal accepted that Mr Trotter had available to him at all times the full services of a medical centre, student counsellors, chaplains, his commanding officer and Divisional Officer, as well as the encouragement of his superior officers and peers to accept he had a problem and to deal with it – [47]. In short, Mr Trotter and his peers, were provided with comprehensive, proactive, multidisciplinary service overlaid by a supportive and compassionate command structure.
In this matter, the evidence suggests that the veteran was given very little support other than that of a basic medical nature. He appears not to have been given psychiatric assistance, and there is little evidence of any counselling. Even more surprising, even though his drinking habit was so extreme that he required hospitalisation twice in six months, still nothing was done to deal with what was clearly a major drinking problem. The fact that his commanding officer was aware of it, but apparently did nothing about it, seems to be indicative of a culture at Butterworth at the time which placed a premium on performance and discipline but less on the personal welfare of RAAF personnel.
Accordingly, even though the appropriate and primary clinical management was repatriation, there is no evidence of any pro-active medical intervention whilst the veteran remained in Malaysia to treat his alcohol use disorder, except when the side-effects required hospitalisation.
The next question is whether there was an inability to obtain appropriate clinical management. The failure of the RAAF to repatriate the veteran to Australia as recommended by Dr Leitch constitutes the inability to obtain clinical management. This failure was not due in any way to any act or omission of the veteran.
The Federal Court has determined that “inability” has both objective and subjective elements, and that the assessment of whether there was an inability is one of practical reality rather than, applying a theoretical approach – Brew v Repatriation Commission (1999) 94 FCR 80.
In this matter, the recommendation of Dr Leitch was specifically countermanded by
Dr Graham two months later. The veteran had no control over whether he was repatriated to Australia. The records disclosed that he made attempts to get posted back to Australia, but for whatever reason he remained in Malaysia for a much longer period than even
Dr Graham thought would be the case.
Reference can be made now to the reasons given by the Board in rejecting the Applicant’s contention that there was an inability to obtain appropriate clinical management.
First, the Board observed that there was no medical opinion that a person with Mr Holmes’ symptoms would, in the period December 1972 until February 1974, having been treated by a reasonably competent civilian doctor, have received a different form of clinical management. This is a formulation of the test of what constitutes “appropriate medical treatment” as enunciated by Denning J in Lee v Minister of Pensions (No 2) (1948) 2 War Pensions Appeals R 1901:
“cases where the man has reported sick but has not been treated with the same skill or expedition or facilities as he would have been in civil life, as, for instance, where the disease has not been diagnosed or treated as early as it should have been, or where the disease occurs at a place overseas where deep X-ray therapy or operative treatment is not available. It is to be assumed in the man’s favour that in civil life he would, on reporting sick, be treated with reasonable care and skill and with the facilities available in his home country, and if, owing to war service he is not so treated, any ensuing aggravation is due to war service.”
There are two main difficulties with the Board’s reasoning. First, the veteran was correctly diagnosed as having a drinking problem in May 1973, it being of such a nature that it required hospitalisation. The treating doctor recommended repatriation. Further, even though the veteran was diagnosed with a drinking problem there is no evidence that he was given any medical assistance. In short, the clinical management accorded to the veteran was manifestly inadequate and fell below a reasonable standard of care that he would have received in Australia in 1973.
Second, the Board determined that there was no evidence suggesting that the inability to obtain treatment led to an aggravation of the veteran’s condition.
Although the Board cite no authority for such a requirement, support can be gleaned from O’Brien and Repatriation Commission [2003] AATA 525.
Assuming that there is a requirement that the inability to obtain appropriate clinical management must lead to an aggravation of the veteran’s condition, then one need go no further than the diagnosis of Dr Leitch who opined that if the veteran was not repatriated he would develop a serious drinking problem. That diagnosis tragically proved to be prescient. The veteran was again hospitalised in December 1973 and his abuse of alcohol became entrenched.
The Board had before it the medical report of Dr Bell. He opined that the veteran “should have been returned to Australia at least 1 year before he was”. He also observed that the decision not to repatriate him to Australia in May 1973 resulted in “a further 9 months of anguish for him.” Finally, Dr Bell opined that the veteran’s “pattern of alcoholism was well and truly allowed to become established during his last 12 months in Malaysia.” – Exhibit 1 T15 p. 88.
It is tolerably clear on the evidence adduced, that the inability to obtain appropriate clinical management of the veteran’s alcohol condition post May 1973 led to an aggravation and entrenchment of that condition.
On the basis of the evidence adduced, I find that Factor 9(13) exists.
Relationship to service
Even if the Tribunal determines that there is the existence in a veteran of a Factor referred to in s 9, that Factor must be related to relevant service rendered by the veteran – s 10(1). The Tribunal is next required to consider the causal tests in s 196B(4) of the Act. For the purposes of this matter two tests are of relevance, namely:
(a) it arose out of, or was attributable to, that service; and
(d) it was contributed to in a material degree by, or was aggravated by, that service.
It is a self-evident proposition that there must be causal connection to service and not just a temporal relation. However, there is a long line of authorities that the particular vagaries of “camp life” (using that term broadly to include service where a veteran is totally or partially segregated from the wider community) need to be carefully factored in by the tribunal of fact.
It is also the case that causation is a question of fact to be assessed by the Tribunal by evaluating and weighing the material admitted into evidence.
Whether an injury or disease “arose out of” or “was attributable to” defence service has been given a broad and generous interpretation by both the Federal Court and the High Court.
Whether a disease arose out of, or was attributable to, defence service, as mandated by s 70(5)(a) of the Act requires the tribunal of fact to determine if there is the requisite causal nexus. The causal connection postulated does not require a strict and mechanistic approach – Roncevich at 133/[56]. In that regard, reference can be made to the judgment of Bowen CJ and Brennan and Lockhart JJ in Repatriation Commission v Law (1980) 31 ALR 140 which was subsequently upheld by the High Court in Repatriation Commission v Law (1981) 147 CLR 635 and cited with approval in Roncevich. Their Honours outlined the following principles which the Tribunal must follow (150 – 151):
“The expression ‘injury arising out of and in the course of employment’ and injury arising out of or in the course of employment’ found in workers’ compensation legislation, have been the subject of much judicial discussion…The precise nature of the relationship denoted by the phrase depends upon the subject matter being dealt with, the context in which the expression is used and the circumstances of the particular case.
In s 101(10)(b) the words ‘arising out of’ require a consequential relationship of the incapacity or death with the service out of which it is said to arise. It is not useful to attempt to put a gloss upon the words of the Act by saying the causal relationship must be ‘immediate’, ‘direct’ or ‘proximate’ or by saying it connotes a ‘real’, ‘sole’ or ‘dominant’ cause.
The Act does not say death which is ‘caused by’ or ‘results from’ his war service – phrases which might connote a proximate causal relationship. The expression ‘arisen out of’ is satisfied if some less proximate causal relationship is established. Of course, a suggested relationship which is fanciful is not sufficient; and a suggested relationship may be so tenuous as to preclude its consideration as answering the description ‘arising out of’…
It seems clear that the expression ‘attributable to’ in each case involves an element of causation. The cause need not be the sole or dominant cause: it is sufficient to show ‘attributability’ if the cause is one of a number of causes provided it is a contributing cause.”
The operation of s 196B(14) was carefully considered by the Full Federal Court in Gilkinson v Repatriation Commission (2011) 197 FCR 102. One of the issues to be determined was the relationship between s 196B(14)(b) and (d). Perram J made these observations – 106–107/[12]:
“The learned primary judge was concerned that if para (b) was not given some more confined operation then it would effective render para (d) superfluous. However, I do not think this can, with respect, be correct. Although there is some apparent similarity, the two provisions deal, I think, with discrete topics. Paragraph (b) is concerned with those cases where the factor (which stands as a proxy for the injury or disease within the intersticies of ss 120 and 120A) would not exist without the service; para (d); para (d) with those cases where the factor would have existed in some form without the service but where the service can be seen as contributing or aggravating it. I do not agree, therefore, that giving para (b) the same kind of operation as the same words in s 9(1)(b) and its predecessors should impact on the operation of para (d).”
Clinically significant disorder of mental health
Both Drs Bell and Duke opined that the veteran suffered from a chronic adjustment disorder during his service in Malaysia, and certainly in the period 7 December 1972 until February 1974 when he rendered defence-service.
The exact cause of the onset of the adjustment disorder is difficult to pinpoint. However, the Tribunal accepts the diagnosis of Dr Duke that it flowed from the “effects of this deployment, and the contributing nature of his emotional immaturity and inability to cope with being away from home” – Exhibit 5 p 3.
It is tolerably clear that the veteran’s adjustment disorder arose out of, or was attributable to, his service in Malaysia. He was, by all accounts, an emotionally fragile person, and struggled when he served his apprenticeship at Wagga Wagga. The evidence is too vague to draw any firm conclusions, but a view could be reached that he was subject to bastardisation at Wagga Wagga and may have sought some assistance for his mental health. However, there is no evidence that prior to his deployment to Malaysia that he was suffering from any mental illness.
It would appear that the long separation from his family and friends while serving overseas may have been the final straw in so far as the veteran’s fragile mental health was concerned.
As was highlighted in Roncevich, the Tribunal is required to consider, inter alia, the nature of the veteran’s service and the circumstances in which it was undertaken. Here, the veteran’s service was overseas and in a strange and alien environment. Butterworth was not a hardship posting, and the Malayan Emergency had long since resolved. In the period that the veteran served at Butterworth there was no armed conflict in the immediate vicinity, and there was no conflict at that time between Malaysia and Indonesia. Accordingly, the veteran was not posted to a dangerous and stressful locale. Nonetheless, the Butterworth posting was stressful for the veteran and he was unable to cope. This led, according to Drs Bell and Duke, to the onset of a mental condition the modern label for which is an adjustment disorder.
In these circumstances I find that the veteran suffered from a clinically significant disorder of mental health at the time of the clinical onset of alcohol use disorder and the disorder of mental health arose out of, or was attributable to, the veteran’s defence-service at Butterworth.
Experiencing the death of a significant other
The veteran reported to Dr Bell the deaths, while he was serving at Butterworth, of his grandfather and his best friend who was killed in a motor vehicle accident. Dr Bell opined that these events may have contributed to his distress whilst he was stationed at Butterworth – Exhibit 1 T15 p. 87.
There is no doubt that these sad events would have troubled the veteran and caused him distress. However, the deaths did not arise out of, nor where they attributable to his service. Neither were the deaths contributed to in a material degree, or aggravated by, the veteran’s service.
There is no causal connection between the deaths of the veteran’s grandfather and best friend and his service. Nor is there any evidence that, due to the veteran’s service, he was placed in a situation where the grief he was experiencing was unduly exacerbated by his service.
In short, there is a temporal connection between these deaths and his service in Malaysia, but the evidence discloses nothing more. There is no evidence, for example, that he sought to attend the funerals of his grandfather and best friend, and was refused. There is no evidence that these deaths were especially traumatic for him.
The Tribunal is left, then, with evidence of the fact that two significant others in the veteran’s life passed away whilst he was serving at Butterworth and that he was distressed by those sad events. There is, therefore, no factual basis for the Tribunal to find that there is a link between these events, the veteran’s service and his alcohol abuse disorder.
Inability to obtain appropriate clinical management
The evidence presented discloses that the veteran presented to hospital in May 1973 suffering dizzy spells after drinking excessive amounts of alcohol over a prolonged period of time. He remained in the hospital for four days, and his treating doctor (Dr Leitch) opined that if he remained at Butterworth he may develop a serious drinking problem. Dr Leitch also recommended that consideration be given for the veteran to be repatriated to Australia. That recommendation was never acted upon. Indeed, only two months later Dr Graham specifically recommended that the veteran not be repatriated to Australia.
As previously noted, the Commanding Officer of Butterworth had independently observed the veteran “drinking heavily”, and noted this in his comments of the veteran on 4 July 1973.
The veteran continued to drink heavily throughout 1973 and was again hospitalised on 4 December 1973 suffering from alcoholic gastritis.
Clearly, the veteran was drinking to excess for some period, and this habit was noted by his commanding officers, and the risk of him developing a serious drinking disorder was diagnosed by May 1973.
The drinking disorder, as previously explained, emanated from his inability to integrate into service life at Butterworth, compounded by his separation from family and friends. As Dr Leitch correctly observed after the veteran’s first alcohol induced hospitalisation, there was a risk that his alcohol disorder would become entrenched if he was not moved back to Australia.
The evidence, therefore, discloses that the refusal of the RAAF to repatriate the veteran to Australia in a timely fashion in accordance with the recommendation of Dr Leitch, was the primary cause of his alcohol use disorder becoming entrenched.
I therefore find that the inability to obtain appropriate clinical management, arose out of, or was attributable to, the veteran’s defence-service at Butterworth.
DECISION
The decision under review is set aside and the matter is remitted to the Respondent for appropriate action.
I certify that the preceding 201 (two hundred and one) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso
.......................[Sgd].................................................
Associate
Dated: 29 March 2019
Date of hearing: 18 December 2018 Date final submissions received: 1 February 2019 Advocate for the Applicant: Mr B O'Neill Advocate assisted by: RSL Tweed Heads & Coolangatta Sub-Branch Advocate for the Respondent: Mr Bruce Williams Solicitors for the Respondent: Department of Veterans' Affairs
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