Horbury and Repatriation Commission
[2008] AATA 6
•4 January 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 6
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200600850
VETERANS' APPEALS DIVISION ) Re ENID HORBURY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Regina Perton Date4 January 2008
PlaceMelbourne
Decision The Tribunal affirms the decision under review. (sgd) Regina Perton
Member
VETERANS’ ENTITLEMENTS ‑ widow’s pension ‑ eligible war service – kind of death ‑ whether Statement of Principles met – alcohol – causal or temporal connection with service – decision affirmed.
Veterans’ Entitlements Act 1986 ss 8(1), 119, 120(4), 120B, 196B(14)
Christopher Lloyd Walmsley v Repatriation Commission [1997] FCA 703
Critch v Repatriation Commission (1996) 43 ALD 574
Re Gillman and Repatriation Commission (1993) 30 ALD 545
Repatriation Commission v Tuite (1993) 29 ALD 609
Repatriation Commission v Gorton (2001) 110 FCR 321
Roncevich v Repatriation Commission (2003) FCAFC 146
Roncevich v Repatriation Commission (2005) 218 ALR 733
Smith v Repatriation Commission (1999) 58 ALD 158
REASONS FOR DECISION
4 January 2008 Regina Perton 1. William Donald Horbury died on 13 August 1987, after more than 40 years of marriage to Enid Horbury. He was 64 years old. Mr Horbury served in the Royal Australian Army (the army) from 1 July 1942 to 11 March 1946. He did not serve outside Australia. His service is treated as eligible war service for the purposes of the Veterans’ Entitlements Act 1986 (the Act). Mr Horbury received a partial disability pension due to a service-related condition of osteoarthrosis right ankle.
2. Mrs Horbury first lodged a claim for a war widow’s pension in 1988. The Commission and the Veterans’ Review Board (VRB) determined that Mr Horbury’s death was not the result of service-related disabilities. Mrs Horbury lodged a second claim, which is the subject of this review, on 23 June 2005. The Commission determined on 16 September 2005 that Mr Horbury’s death was not service-caused. On 4 August 2006 the VRB affirmed the Commission’s decision. Mrs Horbury lodged an application for review with the Tribunal on 13 September 2006.
3. In considering whether Mrs Horbury is eligible for a war widow’s pension, the Tribunal has to determine whether Mr Horbury’s death can be related to his service, taking into account the requirements of the Act and legislative instruments.
Kind of Death
4. Mr Horbury died on 13 August 1987. Dr Pun, the certifying medical practitioner, indicated in the death certificate that the Cause of Death was:
Hematemesis – sudden
Hemochromatosis
Diabetes
Chronic obstructive airways disease
Hypertension
5. The Tribunal received reports from Dr R Byron Collins, Consultant Forensic Pathologist and Professor J F Cade, Director of Intensive Care at the Royal Melbourne Hospital concerning Mr Horbury’s death.
6. In a report to the applicant’s solicitors dated 28 December 2006, Dr Collins, based on the written evidence provided to him (which included reports from Mr Horbury’s treating medical practitioners prepared in 1982, 1987 and1988), stated:
1. There is insufficient medical information presently available to properly assess the significance or otherwise of the disease conditions listed on the death certificate prepared by Dr. Pun and it is lamentable in the extreme, that a post mortem examination was not performed…
2. There is no hard pathological evidence to support the diagnosis of hemochromatosis, particularly in the absence of a liver biopsy and, whilst the abnormalities relating to iron metabolism documented…are consistent with such a diagnosis, they are, in light of the late veteran’s heavy and long-term alcohol consumption, also entirely consistent with the known complications of chronic alcoholism.
…
5. The minimal clinical information relating to the late veteran’s terminal admission following an episode(s) of vomiting blood, appears to indicate that his death was due to blood loss and although, the conditions of diabetes, chronic obstructive airways disease and hypertension were noted on the death certificate, it is unlikely that they played any real role in the demise and the pivotal issue is the underlying cause of the hematemesis that it, was it due to complications of alcohol consumption and/or hemochromatosis-induced cirrhosis?...
7. Professor Cade, in a report dated 21 February 2007, provided a comprehensive medical history. He also responded to questions put by the respondent’s solicitors:
1. What medical condition(s) was (were) the cause of the veteran’s death?
The cause of the veteran’s death was most probably as listed on the death certificate. Thus, there seems little doubt even 20 years later that he did from acute gastrointestinal haemorrhage with subsequent hypovolaemic shock. A not-for-resuscitation order was seemingly appropriately made, presumably because of the severity of his bleeding and the associated comorbidities.
The underlying condition of haemochromatosis had been diagnosed by a specialist physician some three years earlier, and he had been receiving specific treatment. This diagnosis appears to me to be plausible, though it was not confirmed histologically. Given the severity and chronicity of his liver disease, consequent cirrhosis was likely, with further complications of portal hypertension and oesophageal varices. The latter complication was the probable source of the patient’s massive gastrointestinal bleeding…
Of course, given his heavy alcohol intake over many years, he could have had alcoholic liver damage, either instead of or as well as haemochromatosis. There is no definitive histological evidence to separate these possibilities. Either way, the consequences for variceal bleeding can be similar.
The other conditions listed on the death certificate, namely diabetes, chronic obstructive airways disease and hypertension, had all been well documented over many years. They were significant conditions at the time of death, but all were apparently stable, and none could be reasonably considered to have directly contributed to this patient’s death in any material way.
…
8. Dr Collins, in a report dated 4 April 2007, stated that he and Professor Cade agreed that the immediate cause of death was massive blood loss from upper gastro-intestinal tract (site undetermined). Dr Collins’s summary was:
In summary, it appears to me that there are pathologically sound and reasonable hypotheses to implicate the late veteran’s alcohol consumption in his death, either the mechanism of its direct toxic effect on the liver resulting in cirrhosis, or via the pathway of the development of haemochromatosis and the cirrhotic complication of this disease, with the resultant cirrhosis then causing portal hypertension →ruptured oesophageal varices and death by hypovolaemia.
9. Both parties agreed, and the Tribunal accepts, that the kind of death was a gastrointestinal haemorrhage arising out of underlying conditions of haemochromatosis and cirrhosis of the liver.
Legislative Background
10. Section 8(1) of the Act provides:
(1)Subject to this section…, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
…
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…
11. Section 120(4) of the Act provides that the standard of proof to be applied as to whether the death arose out of, or was attributable to, any eligible war service is that of reasonable satisfaction i.e. on the balance of probabilities.
12. As the claim was lodged after 1 June 1994, the Tribunal is required to apply s 120B of the Act. That means that where there is a Statement of Principles (SoP) formulated by the Repatriation Medical Authority pursuant to s 196 of the Act, the Tribunal must apply that SoP in deciding whether there is a connection between Mr Horbury’s eligible war service and the disease that led to his death.
13. For the purposes of formulating the SoPs, the Repatriation Medical Authority must satisfy itself that there is sound medical-scientific evidence of the necessary connections between service and the injury or disease in accordance with generally accepted medical practice for the diagnosis and management of a medical condition. Section 196B(14) of the Act states:
(14)A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
…
(b)it arose out of, or was attributable to, that service; or
…
(d)it was contributed to in a material degree by, or was aggravated by, that service; or
…
Relevant Statements of Principle
14. The Repatriation Medical Authority has formulated SoPs for haemochromatosis and cirrhosis of the liver. The SoP for haemochromatosis is No. 6 of 1997. The relevant SoP for cirrhosis of the liver was No. 36 of 1998 when the claim was lodged. It has now been replaced by No. 108 of 2007 which has been in effect since 14 November 2007. In accordance with the decision of the Full Court in Repatriation Commission v Gorton (2001) 110 FCR 321, the Tribunal must apply the SoP in force at the date of its decision. If the requirements of that SoP are not met, the Tribunal can then consider other SOPs that were current at the time of lodgement of the claim.
15. The relevant SoPs set out a multiplicity of conditions and/or habits arising out of eligible service that could be linked to the kind of death suffered by Mr Horbury. It is not enough that he suffered from one of the precursor criteria. There must be a link between what happened during, or arose from, eligible service and the precursor condition or incident that led to the haemochromatosis or cirrhosis of the liver.
16. The factors that can lead to death from haemochromatosis set out in SoP No. 6 of 1997 are all alcohol-related. Factor 5 states:
(a)for men, drinking at least 220 kg of alcohol (contained within alcoholic drinks) within any 10 year period before the clinical worsening of haemochromotosis; or
(b)for women…
(c)inability to obtain appropriate clinical management for haemochromotosis.
17. SoP No. 108 of 2007 and SoP No. 36 of 1998 both contain many possible factors that must exist before it can be said that death from cirrhosis of the liver is connected to a person’s service. Both parties agreed that the only potentially relevant factor for cirrhosis of the liver in Mr Horbury’s case was his consumption of alcohol. In SoP No. 36 of 1998, Factor 5(a) stated:
(a)for men, consuming at least 220 kg of alcohol (contained with alcoholic drinks) within any 10 year period before the clinical onset of cirrhosis of the liver.
18. In SoP No. 107 of 2007, Factor 6(a) states:
(a)for males, consuming at least 150 kilograms of alcohol within any 10 year period before the clinical onset of cirrhosis of the liver.
19. As can be seen, the current SoP provides for a lower level of alcohol consumption before the clinical onset of cirrhosis of the liver.
20. Both parties agree that Mr Horbury would have met the levels of alcohol consumption set out in the current and previous SoPs.
Mr Horbury’s alcohol consumption and its connection to service
21. Mrs Horbury was not well enough to attend the hearing. The Tribunal was advised that she was unlikely to be able to do so in the future. She provided a written statement dated 12 September 2006 which was taken into evidence. Mrs Horbury stated that she and Mr Horbury began courting when she was 15 years old in 1939, about two years before he enlisted. They married when Mr Horbury was 21 years old (circa 1944). Mrs Horbury stated that her late husband did not smoke or drink before he enlisted. She stated that she would have known if he had either of those habits before enlistment as they often saw each other. Her husband came from a strict church-going family with whom he lived until enlistment. Mrs Horbury stated that she does not now, nor did then, approve of either habit nor did her late husband’s parents. She stated that she found out that he was smoking and drinking before his discharge from the army.
22. Mrs Horbury stated that her husband smoked heavily until he gave up work in about 1978 because of an ankle injury. He had been a truck driver for Linfox for about 28 years. Mrs Horbury stated that her late husband drank beer to excess every day and had done so since the time of his army discharge. She indicated that they had numerous disagreements over his alcohol consumption and that as a result, she had separated from him three times. She returned each time after he had told her that he had given up drinking but unfortunately, he could not do so. He drank heavily until his death.
23. Mrs Horbury stated that her husband became depressed during his army service, missing his family and her. She indicated that he did not enjoy service. She expressed her belief that he started smoking and drinking due to stress from being homesick and lonely.
24. Pamela Horbury, the daughter of Mr and Mrs Horbury, was born after her father completed his army service. In a written statement dated 12 September 2006, she stated that her recollection is that her father was always a heavy drinker, consuming beer to the point of intoxication on almost a daily basis. She described finding her father unconscious on the day he died and smelling alcohol on his breath. She noted that he had not been eating the meals she had prepared for him whilst her mother was in hospital having an operation. Ms Horbury stated that she had been the hairdresser to her father’s late doctor, Dr Shevell. Dr Shevell had warned Mr Horbury to stop smoking and drinking on many occasions and she recalled Dr Shevell asking her to try to get her father to stop but it was to no avail.
25. Ms Horbury stated that she remembered her father warning her two brothers to never join the army, saying it was a mug’s game. She stated that he had made it clear that he was unhappy during his service. She stated that her father was quite an anxious man who became easily upset and that it was her belief that smoking and drinking alcohol were his ways of trying to calm himself.
26. In her oral evidence, Ms Horbury confirmed that her father was 18 years old when he enlisted and aged 22 on discharge. Her childhood memories of her father’s drinking dated back to about her fourth year of school, recalling that he drank a lot of beer. She said that her father had made comments about the army being a mug’s game when her younger brothers were early teenagers. Ms Horbury said that she had discussed her father’s level of alcohol consumption with him when she was around 20 years old and recently married. She had asked him if he could cut his level of drinking and he said he could not.
27. Ms Horbury stated that her father came from a non-drinking family. Ms Horbury said that she had spoken to her father’s sister about her father’s alcohol consumption. After her father’s death, her aunt had told her that the army was the ruination of your father. Her aunt had recounted a conversation with Mr Horbury in which he told her that he was not going to sit around drinking lemonade when everyone around him was drinking beer.
28. Ms Horbury confirmed that her father had been a truck driver for many years and had retired when he was 55 years of age. He had driven long distance hauls for a short time and then began the run between Melbourne and Ballarat every second day. Ms Horbury said she had lived at home until 1964 but returned home when her marriage dissolved. At that time her father was still driving for Linfox. She said that she had seen her father affected by alcohol at that time. Ms Horbury said that her father used to put a bottle of beer in his bag and have a drink at Bacchus Marsh and upon getting home, have a drink. Ms Horbury said that she was not permitted to accompany her father on any of the journeys. She was not aware of him having any alcohol related driving offences. Ms Horbury confirmed that her father drank more after he retired than when he was working. He would often drink two to three large bottles per night.
29. Ms Horbury said that her father attended RSL meetings and reunions and also participated in the ANZAC Day parade in Ballarat. He stopped going when he could not get up the stairs any more.
30. An extract from a report prepared by Military Aviation Research Services on 11 April 2006 in relation to another matter was tendered on behalf of Mrs Horbury. The extract is entitled Alcohol and the Australian Services in World War II. The report indicates that many young Australians commenced drinking alcohol during the war. The soldiers were away from home and receiving a wage. There was no parental guidance and drinking was a part of the culture of the services. However, the report also states that alcohol was rationed in Australia and that beer was not always available in all locations in Australia.
31. Professor John McCarthy prepared a report for the Commission dated 14 March 2007. Mr Horbury’s service record showed that he had served principally in suburban Melbourne, the Albury-Wodonga area, a little time in Queensland and over 12 months in Western Australia. Professor McCarthy stated that alcohol would have been available to Mr Horbury from three main sources. Two were army sanctioned, namely the beer ration and the beer supplied in wet canteens. The third would have been available from licensed commercial premises.
32. Professor McCarthy stated that alcohol rations were provided by the army during the period of Mr Horbury’s service. It was usually supplied in bottles and uncapped at point of issue to prevent accumulation and possible trading. However, the practice varied from one unit to another. Beer was the only alcohol available to those like Mr Horbury, who were below the rank of sergeant. It was contrary to army regulations to bring any alcohol into a military camp apart from alcohol obtained from a canteen. Professor McCarthy stated that there was no precise ration stipulated until early 1945. In a report issued in 1945, the ration was estimated to have been around five or six bottles of beer per man per week. Professor McCarthy calculated that the maximum amount available to a person in army service would have averaged 4.404 litres of beer per week. The arrival of the British Navy in Australia in 1944 put a severe strain on brewing and distribution capacity. By early 1945, it was estimated that beer rations had been reduced to two bottles per man per week.
33. Professor McCarthy described the army’s attitude to the consumption of alcohol by other ranks as benevolent paternalism. Wet canteens were designed to discourage drinking in hotels. The 1944 standing orders for wet canteens were that beer would only be served by way of exchange for coupons and that no more than two glasses of beer would be served to any given soldier at one time. In terms of hotels, the availability of beer was limited at times. From 1943 in Brisbane, beer was only on tap in bars for two to three hours in the afternoon. There were also problems with supply in Sydney in mid 1944.
34. In considering the availability of alcohol in the locations where Mr Horbury served, Professor McCarthy was of the view that a wet canteen would probably have been available and an official ration of beer would have been made available. There would also have been access to licensed commercial premises in most places apart from Mr Horbury’s service in Western Australia during 1943 when his unit was in a relatively isolated area. Professor McCarthy concluded that alcohol would have been available to Mr Horbury through rations; a wet canteen; and in some locations, licensed premises. He indicated that consumption of alcohol and tobacco was regarded as a normal part of a soldier’s life. He stated that both were part of the stereotypical image of masculinity favoured at the time by the armed forces.
35. Both members of counsel cited a number of precedent decisions they deemed relevant, some of which are noted below. Ms Bornstein, counsel for Mrs Horbury, cited the High Court’s decision in Roncevich v Repatriation Commission (2005) 218 ALR 733 as supporting a causal link between Mr Horbury’s drinking and his army service, noting that the link did not have to be the sole, dominant or direct connection. She also highlighted the comments of Heerey J, in the minority in the Full Court in Roncevich v Repatriation Commission (2003) FCAFC 146. Mr Purcell, counsel for the respondent, submitted that Roncevich is of limited relevance in this matter, given it concerned different facts and circumstances, namely whether the injury sustained by the appellant falling from a window in the barracks was causally related to his alcohol consumption in the sergeant’s mess and subsequent intoxication before the fall.
36. Ms Bornstein drew a parallel with Smith v Repatriation Commission (1999) 58 ALD 158 and this matter wherein it was found that one of the reasons that the veteran had taken up smoking was peer group pressure. She also cited Critch v Repatriation Commission (1996) 43 ALD 574 where Merkel J allowed an appeal against a Tribunal decision finding that the Tribunal erred in rejecting that there was a reasonable hypothesis linking the veteran’s smoking with the stress and peer pressure experienced during his operational service. Both of these cases involve a different test of satisfaction to the present matter as they both concerned operational service.
37. In Repatriation Commission v Tuite (1993) 29 ALD 609, the Full Court distinguished between a contributing cause to Mr Tuite taking up smoking and the setting in which this occurred. Ms Bornstein submitted that in this case, Mr Horbury had joined the army as an 18 year old, had access to alcohol and was exposed to a drinking culture. She submitted that Ms Horbury’s evidence about her father’s comments to his sons and her observations of him drinking; the comments of her aunt after her father’s death; Mrs Horbury’s statement and other evidence indicating that Mr Horbury came from a non-drinking family, provided evidence to take Mr Horbury’s taking up drinking beyond the temporal into a causal relationship between his army service and his heavy alcohol consumption. Mr Purcell submitted that in Tuite, Mr Tuite himself had given evidence about why he started smoking. However, he pointed out that there is no evidence in this matter as to how or why Mr Horbury began drinking or when his drinking reached problem levels. He also submitted that there is a difference in the addictive qualities of cigarettes and alcohol use, the latter being more widely used socially, without the same levels of addiction for the latter. Mr Purcell submitted that the available evidence in this matter merely indicates a temporal link.
38. Mr Purcell drew parallels between Christopher Lloyd Walmsley v Repatriation Commission [1997] FCA 703 and the present matter. Whitlam J upheld a Tribunal decision that ingestion of alcohol could not be found on the balance of probabilities to arise out of or be attributable to Mr Walmsley’s army service. Mr Walmsley, like Mr Horbury, left a close family environment to join the army as a teetotaller. He began drinking as a result of peer pressure and drank very heavily later in life. Mr Purcell submitted that in the current case, there is no evidence as to whether there was any peer pressure specifically or generally to drink alcohol; nor is there any evidence as to what if anything he drank on a daily basis or when he started consuming alcohol at the level described by Ms Horbury in her evidence.
39. The Tribunal accepts that Mr Horbury was a non-drinker when he joined the army at the age of eighteen and that when he left at the age of twenty-two, he was no longer so. At some stage, he became a very heavy drinker. However, there is no evidence available as to why he actually commenced drinking or the amount he consumed except for medical evidence in the 1980s where he reported drinking two or three bottles of beer a day. Whilst he may well have called the army a mug’s game, there is no corroborating evidence that Mr Horbury was referring to his drinking in making that comment. He may well have been referring to his career or other aspects of his life. The Tribunal notes that there was no evidence from the sons to whom he was said to make that comment or the context in which it was uttered. Mr Horbury’s sister who commented on his drinking after his death and Mrs Horbury were opposed to drinking in general. Unfortunately, with his sister having passed away and Mrs Horbury being unavailable for questioning by either the Tribunal or Mr Purcell, it was not possible to delve into the basis of their comments of blaming the army for his heavy drinking nor when it actually became apparent. Ms Horbury’s earliest memory of her father’s drinking was from when she was eight or nine years old. The Tribunal accepts her evidence of his heavy alcohol consumption but that does not necessarily mean that it was caused by his army service which finished almost a decade before her earliest recollection.
40. The Tribunal takes into account the beneficial nature of the Act and the passage of time (s 119(1)(h) of the Act). However, as was pointed out in Re Gillman and Repatriation Commission (1993) 30 ALD 545, a case which has parallels to the present case, s 119(1)(h) cannot be used to provide evidence of facts if none exists.
41. The Tribunal is not satisfied that there is anything more than a temporal link between Mr Horbury’s alcohol consumption and his eligible war service. It is not reasonably satisfied on the available evidence that there is a causal connection between his alcohol consumption and his eligible war service.
DECISION
42. The Tribunal affirms the decision under review.
I certify that the forty-two [42] preceding paragraphs are a true copy of the reasons for the decision of:
Regina Perton, Member
(sgd) Mara Putnis
Clerk
Date of hearing: 18 July 2007
Date of decision: 4 January 2008Counsel for applicant: Ms J Bornstein
Solicitor for applicant: Williams Winter
Counsel for respondent: Mr G Purcell
Solicitor for respondent: Advocacy Section, Department of Veterans’ Affairs
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