Horby and Repatriation Commission - [2003] AATA 980

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 980

ADMINISTRATIVE APPEALS TRIBUNAL Nº V2001/719

VETERANS' APPEALS DIVISION

Re: ISABEL HAZEL HORBY

Applicant

And: REPATRIATION COMMISSION

Respondent

DECISION

Tribunal: Mr B.H. Pascoe, Senior Member

Dr P. Fricker, Member

Date: 30 September 2003

Place: Melbourne

Decision:The Tribunal sets aside the decision under review and in its stead decides that the death of the late veteran, Mr Lawrence Wayne Horby, was war‑caused and the applicant is entitled to war widow's pension, with effect from 6 April 2000.

(sgd) B.H. Pascoe
Senior Member

VETERANS' AFFAIRS – whether death of veteran war‑caused – cirrhosis of the liver - whether factor in Statement of Principles satisfied - whether heavy consumption of alcohol connected with circumstances of service

Veterans' Entitlements Act 1986

REASONS FOR DECISION

30 September 2003 Mr B.H. Pascoe, Senior Member

Dr P. Fricker, Member

This an application to review a decision of the Veterans’ Review Board (VRB) of 22 May 2001, which affirmed a decision of the respondent of 21 June 2000 that the death of the applicant’s late husband was neither war‑caused nor defence‑caused under the Veterans' Entitlements Act 1986 (the Act).
At the hearing, the applicant, Mrs I. Horby, was represented by Mr P. Liefman, a solicitor, and the respondent by Mr G. Purcell, of counsel. Evidence was given by Mrs Horby and Mr J. Hadler, a former colleague of her late husband, Mr L. Horby. In addition to the documents provided by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act1975, the following documents were tendered by the parties:
Statement of Mr J. Hadler dated 10 May 2003  Exhibit A1
Defence Psychological Record of Mr Horby  Exhibit R1
Clinical notes of Dr J. Lowther, general practitioner  Exhibit R2
Clinical notes of Belevra Private Hospital  Exhibit R3
Medical records of Frankston Hospital  Exhibit R4
Department of Defence documents Nº 1‑36  Exhibit R5
Report WriteWay Research Service dated 26 August 2002              Exhibit R6
Report WriteWay Research Service dated 21 May 2003                   Exhibit R7
Extract from Department of Veterans' Affairs file, including
Decision of 9 September 1999  Exhibit R8
Mr Horby was born on 4 December 1949 and served in the Royal Australian Navy (the navy) from 11 July 1965 to 31 December 1986. He had eligible war service and operational service in nine voyages to Vietnam, the first of which commenced on 20 May 1968 and the last being completed on 9 March 1972. He died on 5 April 2000 with the cause of death certified to be:
Acute Liver failure — 3 weeks
Chronic Liver disease — 5 years
The hearing before the VRB proceeded on the basis of a submission on behalf of the applicant that Mr Horby's death was connected with the circumstances of his navy service from 1982 to 1986 and excessive alcohol consumption during that period. At the hearing before this Tribunal, it was submitted that the veteran's death was causally related to his operational service as a result of excessive alcohol consumption attributable to his Vietnam service.
Mrs Horby gave evidence that she first met Mr Horby at the end of 1969 and they were married in 1972. A daughter was born in 1975 and a son in 1978. She said that she remained living with her parents immediately after marriage as Mr Horby was away at sea most of the first two years. They saw very little of each other during this period. When Mr Horby was posted back to HMAS Cerberus in 1974, they moved to a navy house in Frankston. They moved once more when Mr Horby was posted to Canberra. Mrs Horby said that, prior to the marriage, she saw him approximately one weekend out of four or five when he was on leave.
Mrs Horby said that, from the time she first met Mr Horby, he was drunk when he picked me up and drunker when he left.. At times, when he arrived direct from work on Fridays, he would be sober but then would be generally drunk for most of the weekend. She said the common pattern was to go to a drive‑in movie on Friday night to which Mr Horby would take a slab of beer with him, to go to a football match on Saturday and have a counter‑tea at a hotel. Mrs Horby said that, after marriage, the same pattern of heavy drinking continued. She said that drinking was a major part of Mr Horby's life and he would not go anywhere without alcohol. He drank heavily when at home and she assumed he maintained a heavy alcohol consumption when away from her.
Mrs Horby said that her late husband was a man of few words and never discussed his drinking or told her of any navy experiences. He had not told her of his decision to leave the navy in 1986 until after the event. She said he had a short fuse and was difficult to live with, particularly after their daughter was born in 1975. She said that he did not sleep well, frequently screaming, yelling, jumping about, and having sweating and cramps over the years of their marriage. Mrs Horby said that she was unaware of any medical problems until in either 1980 or 1981, she called his ship, HMAS Vampire, after not hearing from her husband after its arrival in New Zealand to be informed by the coxswain that he had been flown to hospital in Sydney with cirrhosis of the liver. She said that Mr Horby stopped drinking altogether for, she thought, about three years in the early 1980s, although he then resumed his heavy drinking habit.
Mr Hadler joined the navy at the same time as Mr Horby as a junior recruit in 1965. After a year of training at HMAS Leeuwin, they were transferred together to HMAS Melbourne. Mr Hadler believed that Mr Horby had gone to sea first as Mr Hadler deserted in August 1966 and was awarded detention. Mr Hadler said that he would have seen Mr Horby each day from recruitment until the first voyage and they were together completing a course at HMAS Cerberus in the first half of 1967. They joined HMAS Anzac together in July 1967, both working in the boiler room, and were together on the voyage of HMAS Anzac to Vietnam in May/June 1968. They remained together on HMAS Anzac until March 1969 when Mr Horby was transferred to HMAS Brisbane for his second voyage to Vietnam from March to October 1969.
Mr Hadler said that, during training at HMAS Leeuwin, they had one half-day leave at weekends. Being under age and with little money, they did not purchase alcohol, although, on four or five occasions during the year, relatives of other recruits would produce a can of beer, which they would drink. After transfer to HMAS Melbourne, both Mr Hadler and Mr Horby played a considerable amount of sport, particularly golf. Mr Hadler said that they would, on occasions, visit a hotel and often have a drink after a game of golf. He was resolute that, at that time, they would have no more than two drinks on any one occasion and he estimated a weekly consumption of approximately eight 10‑ounce glasses of beer. He insisted that, prior to the first voyage to Vietnam in 1968, both he and Mr Horby would be categorised as social drinkers with more interest in sport.
Mr Hadler said that HMAS Anzac went to Vung Tau harbour in Vietnam as escort for HMAS Sydney.. He said that, although briefed on defensive tactics to be used in Vietnam, they had not had experienced detonation of scare charges and no announcement of pending scare charge explosions could be heard in the boiler room. While in Vung Tau harbour, one set of scare charges was detonated and both he and Mr Horby were frightened by the noise and thought that the ship was being attacked. Although they were subsequently advised that the explosions were scare charges, Mr Hadler said that they became very conscious of their vulnerability being below decks in a boiler room with little chance of escape. He said that they were both extremely nervous and aware of being in a war zone. He said that they were thrown from kids to men in one day. He said that, upon return to Australia, both men with other members of the crew went to a hotel and drank excessively. Rather than their prior habit of playing golf when on leave, both men immediately went to a succession of hotels, talked of their experiences and became drunk on a regular basis.
Mr Hadler said that he was living in a navy flat in Sydney in October 1969 while serving on HMAS Duchess. HMAS Brisbane docked in Sydney on 13 October 1969 and Mr Horby stayed with him until the departure of HMAS Duchess on 15 October. Mr Hadler said that, although Mr Horby had been provided with a train ticket to Melbourne for 13 October, he did not use it but purchased an aeroplane ticket for a later date. He said that Mr Horby became very drunk on that first night and it was the first time that he saw him drink spirits. He said that he had to carry Mr Horby back to the flat and that drinking recommenced the next day. He said that Mr Horby told him of an explosion of the forward gun on HMAS Brisbane. Mr Horby had been below deck in a forward compartment, the explosion was extremely loud and his immediate reaction had been to believe that the ship had been hit. Mr Hadler said that he saw Mr Horby regularly until the mid‑1970s. While Mr Hadler left the navy in February 1974, but remained in Sydney, Mr Horby stayed with him when on leave. On every occasion, Mr Horby would become drunk and said that it was the only way he could get to sleep. Mr Hadler said that he was aware that Mr Horby began taking bottles of rum back on board ship after leave, when he had his own room on board. Although Mr Hadler lost regular contact with Mr Horby after the mid‑1970s, he said that he heard through other friends that Mr Horby continued to be a very heavy drinker. Mr Hadler was resolved that the first time he had seen Mr Horby drunk was after return from Vietnam in 1968.
Captain Josephs is a former experienced naval officer who provided research material through WriteWay Research Service (WriteWay) on aspects of the service of Mr Horby and Mr Hadler. He said that scare charges consisted of 1lb of explosive and were thrown from the ship to explode some 20ft or more from the ship. He said that briefings on the use of scare charges were given on the voyage to Vietnam but he was not aware of any system used to warn engine or boiler room personnel immediately prior to their use when in harbour. He acknowledged that the effect of the explosion of scare charges would have been more pronounced in HMAS Anzac than in HMAS Sydney which was a much larger ship. Captain Josephs was doubtful that any scare charges were detonated in practice prior to the trip to Vietnam as there would have been environmental concerns at such detonations in Sydney Harbour or Jervis Bay. Captain Josephs noted there had been a premature explosion in HMAS Brisbane's forward gun mounting on 22 July 1969, causing injury to one sailor. He believed that the concussion from the detonation, thought to have been caused by faulty ammunition, would have been felt in machinery spaces below deck. He noted that HMAS Brisbane arrived back in Sydney on 13 October 1969 and Mr Horby was granted leave from that day, with leave travel by train at approximately 7 p.m. He noted, also, that Mr Hadler departed in HMAS Duchess on 15 October 1969.
As Mr Horby had operational service, s120(1) of the Act provides that the death of a veteran shall be determined as war-caused unless the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Section 120(3) provides that the Tribunal shall be so satisfied if it is of the opinion that the material before it does not raise a reasonable hypothesis connecting the death with the circumstances of the particular service rendered by the person.. As the claim was made after 1 June 1994, s.120A of the Act requires the Tribunal to assess the reasonableness of a hypothesis in accordance with any Statements of Principles (SoP) issued by the Repatriation Medical Authority or any relevant determination or declaration under the Act. In this case the relevant SoP is:
Instrument Nº 35 of 1998 concerning cirrhosis of the liver

The SoP sets out the factors, one of which must relate to the veteran’s service, which must, as a minimum, exist before it can be said that a reasonable hypothesis has been raised.

The factor relied on in this case is factor 5(a):
for men, consuming at least 150kg of alcohol (contained within alcoholic drinks) within any 10 year period before the clinical onset of cirrhosis of the liver;…

Alcohol consumption is calculated utilising the Australian Standard of 10 grams of alcohol per standard alcohol drink. The requirement of 150kgs within a 10‑year period equates to an average of 1500 standard drinks per year or 4.1 standard drinks per day.

There was no dispute that the cause of death of Mr Horby was cirrhosis of the liver. Neither was there any dispute that the late Mr Horby consumed the relevant amount of alcohol in the 10‑year period from 1969 when he met the future Mrs Horby. The question for the Tribunal is whether that level of alcohol consumption can be connected with the circumstances of the relevant service.
For the applicant, it was submitted that the heavy drinking of Mr Horby commenced as a psychological reaction to the stress of his operational service commencing with his first voyage to Vietnam in HMAS Anzac in 1968 and aggravated by the voyage in HMAS Brisbane in 1969. The evidence of Mr Hadler was relied upon as being contemporaneous and clear that, prior to that first voyage, Mr Horby was a light drinker and concentrated on sporting activities whereas, after that first voyage, he became a consistent heavy drinker.
For the respondent, it was submitted that service in the navy from age 15 was the setting in which Mr Horby commenced drinking with the availability of alcohol, peer pressure, being free of parental influence and earning money. It was said that it was highly improbable that Mr Horby's heavy drinking habit only started after his first operational service. Mr Purcell noted that Mr Horby had been in the navy for 3 years with 2 years on ships prior to the voyage to Vietnam and was unlikely to have been affected to the extent alleged by the explosion of one set of scare charges. It was suggested that the evidence of Mr Hadler should be accepted with some caution with his alleged clear memory of events some 35 years later, including a memory of exactly where each of Mr Horby and himself were on one day in HMAS Anzac. The fact that Mr Horby had no apparent difficulty in making subsequent trips to Vietnam in the boiler room of HMAS Sydney was said to be relevant.
From the evidence of Mrs Horby and the documentary medical evidence, the Tribunal has no doubt that Mr Horby was drinking heavily and in quantities to satisfy the relevant factor in the SoP at least from 1969 and for the following 10 years. While we accept that Mr Hadler may have had a vested interest in providing the clear evidence of social drinking prior to the first voyage in Vietnam and heavy drinking thereafter to support claims of his own, we cannot be satisfied that his evidence was not true. He stressed the fact that the voyage into a war zone for the first time, being more vulnerable below decks and the lack of knowledge of what was happening above deck and around the ship, was stressful for an 18 year old and turned kids into men. It is very relevant in this case that the Tribunal is not being asked to determine whether Mr Horby would satisfy the SoP on alcohol abuse or alcohol dependence requiring, as it does, for the applicant to have suffered a severe stressor.. Here there is no doubt that the veteran died from cirrhosis of the liver. The hypothesis has been advanced that heavy consumption of alcohol caused by the circumstances of operational service led to the disease which, in turn, led to the

death of the veteran. Material has been advanced pointing to that hypothesis and the hypothesis is consistent with factor 5(a) of the relevant SoP. Consequently, the hypothesis is reasonable unless we can be satisfied beyond reasonable doubt that the facts relied upon in the material advanced is disproved. In this case, all of the evidence, particularly that of Mr Hadler, points to the finding that the heavy consumption of alcohol commenced only after the first voyage to Vietnam and was well entrenched following the second voyage. The evidence of Mr Hadler was that the overall stresses of those voyages caused the change from light or social drinking to heavy drinking. At best, the respondent can advance an hypothesis that it was possible, even likely, that the prior three years of navy service may have provided a setting in which Mr Horby commenced to drink heavily and regularly. We cannot be satisfied beyond reasonable doubt that the scenario suggested by the respondent is more likely to have been the fact. As stated earlier, all of the evidence directly available to the Tribunal was to the contrary. It is relevant to note the difficulties of such cases dealing with events of some 35 years ago, the fact that Mrs Horby met her late husband only in 1969, her evidence that he did not discuss any aspect of his service and the unavailability of any other witnesses.

In light of the foregoing, the decision under review should be set aside and in its stead, a finding that the death of the late veteran Mr Horby, was war‑caused and his widow, Mrs Horby, is entitled to war widow's pension, with effect from 6 April 2000.

I certify that the nineteen [19] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr B.H. Pascoe, Senior Member

Dr P. Fricker, Member

(sgd) Catherine Thomas
Clerk

Date of Hearing:  2 September 2003
Date of Decision:  30 September 2003
Solicitor for the applicant:            Mr P. Liefman, of Peter J. Liefman
Counsel for the respondent:        Mr G. Purcell
Solicitor for the respondent:         Advocacy Section, Department of Veterans’ Affairs