JOYCE HOWES and REPATRIATION COMMISSION
[2013] AATA 278
[2013] AATA 278
Division VETERANS' APPEALS DIVISION File Number
2012/4381
Re
JOYCE HOWES
APPLICANT
And
REPATRIATION COMMISSION
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 8 May 2013 Place Brisbane The Tribunal sets aside the decision under review and substitutes its decision that the death of the veteran was war-caused and that the applicant is entitled to receive the war widow’s pension with effect from 7 August 2011.
...............................[SGD].........................................
Mr R G Kenny, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Pensions and Benefits – Widow’s pension – Operational service with Royal Australian Air Force – Kind of death from cerebrovascular accident – Statements of Principles – Clinical onset – Increase in alcohol consumption or cigarette smoking – Increase related to operational service – Reasonable hypotheses of relationship to eligible service raised – Not satisfied beyond reasonable doubt death not war-caused – Decision set aside and substituted
LEGISLATION
Veterans' Entitlement Act 1986 (Cth) ss 5E, 6C, 7, 8, 11, 14, 70, 120, 120A, 177
CASES
Benjamin v Repatriation Commission (2001) 70 ALD 622
Bushell v Repatriation Commission (1992) 175 CLR 408
Collins v Repatriation Commission [2009] FCAFC 90
East v Repatriation Commission (1987) 12 ALD 389
Kaluza v Repatriation Commission [2010] FCA 1244
Lees v Repatriation Commission (2002) 125 FCR 331
Repatriation Commission v Deledio (1998) 83 FCR 82Repatriation Commission v Law (1981) 36 ALR 411
Repatriation Commission v Roncevich (2005) 222 CLR 115
Repatriation Commission v Tuite (1993) 39 FCR 540SECONDARY MATERIALS
Statement of Principles: Instrument No. 51 of 2006 as amended by Instrument No. 123 of 2011
REASONS FOR DECISION
Mr R G Kenny, Senior Member
BACKGROUND
John Howes (the veteran) served in the Royal Australian Air Force (RAAF). He died on 15 September 2009 at the age of 78 years. The applicant is his widow and dependant as those terms are defined in ss 5E and 11, respectively, of the Veterans’ Entitlements Act 1986 (Cth) (the Act). On 7 February 2011, the applicant lodged a claim, under s 14 of the Act, for a pension on the basis that the veteran’s death was war-caused in accordance with s 8 of the Act. That claim was rejected by the Repatriation Commission (the respondent) on 16 September 2011 and by the Veterans’ Review Board on 5 September 2012.
SERVICE
The veteran’s RAAF service was from 20 March 1950 until 26 August 1974. He rendered eligible war service in the form of operational service in accordance with ss 7 and 6C, respectively, of the Act from 22 June 1958 until 24 October 1960 as part of the Far East Strategic Reserve in Butterworth, Malaysia. He also rendered a period of defence service in accordance with s 70 of the Act from 7 December 1972 until his discharge.
CAUSATION
It is common ground that the veteran’s defence service is not relevant to the applicant’s claim. In order for the death of a veteran to be accepted as being war-caused, one of the requirements in s 8 of the Act must be met. Relevant in this matter is s 8(1)(b) of the Act, which reads:
(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;
…
Where, as in this case, operational service was rendered, the standard of proof applicable to the determination is set out in s 120(1) of the Act, which reads:
120 Standard of proof
(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
The application of that provision is affected by the terms of s 120(3) and by s 120A(3) of the Act. Those provisions read:
120 Standard of proof
…
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b) that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
...
120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
…
(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a ) a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
…
Those provisions are concerned with matters of causation and require a consideration of any relevant Statements of Principles which have been published by the Repatriation Medical Authority. Before applying the causation provisions of the Act, it is necessary to consider the “kind of death” applicable to the veteran, a matter which is to be determined to the decision-maker’s reasonable satisfaction.[1] The veteran’s death certificate nominates the cause of death to be “1(a). Aspiration pneumonia 2. Cerebrovascular accident, atrial fibrillation”. It is common ground and I am reasonably satisfied that the kind of death in this matter was cerebrovascular accident (stroke).
[1] In accordance with s 120(4) of the Act: see Benjamin v Repatriation Commission (2001) 70 ALD 622 at 634-5 and Collins vRepatriation Commission [2009] FCAFC 90 at [20] per Mansfield and Stone JJ.
The issue for the Tribunal is whether the veteran’s cerebrovascular accident arose out of, or was attributable to, any eligible war service rendered by him.
CONTENTIONS
Mr Anthony Harding
While conceding that the veteran smoked cigarettes from the start of his RAAF service, Mr Harding submitted that he smoked more heavily while serving in Butterworth because of the low cost of cigarettes and stressful aspects of service as an armourer, which included the handling of live 500 pound bombs, and incidents on service such as the rescue of a navigator trapped in the cockpit of a burning aircraft. He submitted that the increased level of smoking continued until the veteran had a stroke in 1988.
In relation to alcohol consumption, Mr Harding conceded that the veteran consumed alcohol before his posting to Butterworth but submitted that this increased in quantity and kind because of aspects of his service in Butterworth. These included Butterworth’s different social and climatic environment, stressful aspects, as noted above, of his work and the low cost and ready availability of alcohol, particularly in the form of spirits. He submitted that it was the conjunction of those matters which caused the veteran to change his alcohol consumption patterns, by consuming spirits such as scotch and bourbon as well as increased amounts of beer, which were maintained until he suffered a stroke in 1988 and which continued thereafter.
Mr Harding submitted that the impact of the service-related increases in cigarette smoking and alcohol consumption meet the requirements of the relevant Statement of Principles for cerebrovascular accident. He also submitted that a reasonable hypothesis of a relationship to service was raised by the material in evidence and that I could not be satisfied beyond reasonable doubt that the veteran’s death was not war-caused.
Mr Harding accepted that the evidence of a relationship to the veteran’s service must show more than a temporal connection in that the connection must be causally associated with it.[2] He also submitted that it was not necessary to limit causal factors to those which the veteran was obliged to undertake as part of his duties as an airman.[3] He also submitted that, for a factor to be causally associated with service, it need not be the sole or dominant cause providing it was a contributing cause.[4]
[2] Citing Repatriation Commission v Tuite (Tuite) (1993) 39 FCR 540 at 545 per Burchett and Einfeld JJ.
[3] Citing Repatriation Commission v Roncevich (2005) 222 CLR 115 at 126 [27] per McHugh, Gummow, Callinan and Heydon JJ.
[4] Citing Repatriation Commission v Law (1981) 36 ALR 411 at 420.
Mr Jeff Kelly
For the respondent, Mr Kelly submitted that the veteran was an established smoker and drinker from well before he was posted to Butterworth. He also submitted that any subsequent increase during service bore merely a temporal relationship to his operational service. He submitted that the nature of his duties at Butterworth was not materially different from those he performed at Amberley before his overseas posting and that any increase in smoking and drinking was associated with social activities on weekends with other family members, including children. He submitted that the decision under review should be affirmed.
EVIDENCE
The applicant
The applicant met the veteran in Brisbane in 1950 and they were married in 1951. She noted that, at that time, he smoked about five cigarettes per day and drank socially, usually in the form of a few drinks on a Friday afternoon. In Butterworth, they lived in the married quarters in Penang with their young son, Peter. She believed that the veteran’s service there was stressful for him and she became aware of his increase in smoking and alcohol consumption because of it. She described the veteran as a perfectionist and she believed that his high standards increased the stress associated with carrying out his duties as an armourer handling live 500 pound bombs. The applicant said that the veteran had been promoted to corporal in Butterworth and that this further increased his stress levels because of the additional responsibility of supervising younger airmen. She recalled that he would call out in his sleep on matters relating to that responsibility. She also recalled an incident when an aircraft, loaded with live bombs, crashed on take-off with the navigator being trapped by the legs. She said that the veteran was on duty at the time and was involved in releasing the man from the plane and extinguishing a fire.
The applicant said that, in Butterworth, cigarettes and beer, but particularly spirits, were substantially less expensive than in Australia. She noted that, while there, the veteran would have a cigarette on waking and before going to bed at night and that, from then onwards, the veteran smoked about two packets of cigarettes per day until he finally ceased smoking in 1988 after a stroke. She said that the veteran took advantage of the lower alcohol prices to purchase and consume more of it but also began to consume spirits, either scotch or bourbon. The applicant referred to the veteran’s medical evacuation from Butterworth because of a duodenal ulcer which required him to undergo treatment in Australia at Richmond. The applicant said that his smoking and alcohol consumption continued in subsequent postings to Amberley, Williamtown and Evans Head and she recalled that the veteran would usually repair to a hotel after stand-down from duty on Friday afternoons, remain there until closing and continue to “binge drink” during the weekends with beer and spirits. After he left the RAAF and retired, the applicant and the veteran lived at Yandina and she recalled that, each week, he would purchase and take home from the hotel a carton of beer and a bottle of Captain Morgan rum. She described the pattern of drinking as continuing until shortly before he died.
The applicant was referred to a smoking questionnaire signed by her on 24 November 2010.[5] There, it is noted that the veteran began smoking before she met him and was smoking 1¼ packets of cigarettes once he was a regular smoker. The document records an increase to 2 packets per day from 1958 until 1988. The applicant was also referred to an alcohol questionnaire dated 24 November 2010.[6] She agreed that it was probably signed by her. It records that the veteran became a regular drinker of alcohol when he turned 21 years of age because his service mates also drank alcohol. It describes a level of 6 stubbies of beer and 100 mls of rum per day. It also records the veteran drinking alcohol each day of the week after they were married. Binge drinking was described as occurring at “Squadron re-unions and Anzac Day”. The applicant said that the questionnaire documents were completed by a lady from a service body and she noted that they contained incorrect information about the year she met the veteran and about his drinking alcohol each day when he only did so on Fridays and weekends. She also noted that the reference to rum in the document was expressed as a metric measure of 100 mls and she said that she had no idea what that meant.
[5] See Exhibit 1, T-documents, pp. 54-55.
[6] See Exhibit 1, T-documents, pp. 34-35.
Peter Howes
Mr Howes is the son of the veteran and the applicant. He was six years old when they moved to Butterworth. He was too young to recall the veteran’s consumption habits before then but was able to remember that he was a heavy smoker on return to Australia, consuming some two packets of cigarettes per day. He recalled that the veteran did not take alcohol on weekdays but that he would “binge-drink” on weekends. Mr Howes said that his father had talked to him about his work as he got older, indicating that it was the sort of work where one could not afford to make a mistake because it involved live ammunition. Mr Howes did not have a close relationship with the veteran whom he described as abusive and violent at times. Mr Howes left the family home when he was 17 years old. He recalled an incident in 1985 when the veteran, in a drunken state, telephoned him and challenged him to a fight.
Bill Black
Mr Black served with the veteran before, during and after his time in Butterworth. He was also an armourer and described the work as stressful. At Amberley, before being posted overseas, the work involved the loading of practice bombs onto Canberra aircraft. These were 25 pound devices, called “smoke flash” bombs, but he said that even these were potentially dangerous. The work also involved looking after ejection seats which were operated with an explosive cartridge. Mr Black worked closely with the veteran at Butterworth where they were responsible for loading and maintaining live bombs and ejection seats. He described two strikes by Canberras using the full 500 pound bombs against the Communist terrorists. He said that such a device would kill those within half a mile if it detonated. Apart from the two strikes, work involved the use of the practice bombs as at Amberley.
Mr Black described the veteran as “fairly tense and uptight” and as a person who took things quite seriously which may have been due to the responsibilities associated with his rank as a corporal. He recalled that the veteran smoked at least a packet of cigarettes a day while at Amberley. He did not see the veteran socially so was not aware of his alcohol consumption patterns at that time but said that he never saw him “rolling drunk”. At Butterworth, initially, Mr Black lived on the base while the veteran was in the married quarters in Penang. Mr Black got married at Butterworth and moved to Penang where he saw the veteran on social occasions a little more often but was not able to estimate his alcohol consumption levels. Referring to his own drinking habits, Mr Black said that he consumed alcohol heavily at Butterworth because it was inexpensive, the weather was hot, there was not a lot to do when the day’s work was done and he was in the company of his mates with whom there were many social occasions. He believed that alcohol helped the RAAF personnel to deal with the daily stress of their duties.
Alcohol and smoking documentation
The alcohol and smoking questionnaires signed by the applicant on 24 November 2010 are noted above.
A medical report about the veteran’s irritable bowel syndrome was completed by Dr Forgan-Smith in January 1984.[7] It includes the following:
He drinks moderately telling me only 4 nips of scotch in the last 2 months. He smoked 20 a day for past 40 years.
[7] See Exhibit 1, T-documents, pp. 56-57.
Another medical report was completed, apparently, in 1984 which is consistent with the veteran’s then age of 52 years of age.[8] It includes the following:
No ethanol intake. …
Cigs: 25 cigs/day for 40 years. Alcohol: nil now, was heavy.
[8] See Exhibit 1, T-documents, pp. 58-59.
The veteran completed a Claimant Report – Cigarette Smoking on 11 May 2000.[9] It records that he commenced smoking “on enlistment” at the rate of “2 packs per day” because of “peer pressure & stress”.
[9] See Exhibit 1, T-document, pp. 61-62.
The veteran underwent treatment for a duodenal ulcer which was accepted as being related to his service because it had its onset during that service in 1960. A departmental medical opinion in relation to his claim noted:[10]
In member’s case duodenal ulcer is due to inherent predisposition, aggravated by heavy smoking and heavy alcohol consumption.
[10] See Exhibit 6.
PROCEDURE FOR CONSIDERATION
The procedure for determining whether or not a particular condition which caused death arose out of, or was attributable to, any eligible war service that the veteran rendered was set out by the Federal Court in the following terms:[11]
(i) The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
(ii) If the material does raise such hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). ...
(iii) If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the `template' to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be `reasonable' and the claim will fail.
(iv) The Tribunal must then proceed to consider under 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, ... If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
[11] See Repatriation Commission v Deledio (1998) 83 FCR 82 at 82 – 83.
Step 1:- Hypotheses
The first step requires that there be material which points to an hypothesis connecting the condition which caused death with service. I accept that two hypotheses have been raised on behalf of the applicant.
The first hypothesis is that the veteran increased his smoking by at least five cigarettes per day because of a combination of service-related matters and maintained that increase until the clinical onset of his cerebrovascular accident. The second is that the veteran was a social consumer of alcohol before his posting to Butterworth and that a combination of factors during that service was causally associated with his increase in the level of consumption and the change in its nature from drinking beer only to consuming spirits as well which continued until the clinical onset of his cerebrovascular accident.
Step 2:- Statement of Principles
The hypotheses noted above require a consideration of the Statement of Principles for cerebrovascular accident. This is Instrument No. 51 of 2006.[12] Therein, the relevant factors in cl 6 and associated definitions in cl 9 read:
[12] As amended by Instrument No 123 of 2011 in a manner not material to this matter.
…
(f) drinking an average of at least 250 grams of alcohol per week, for at least the one year before the clinical onset of cerebrovascular accident; or
…
(o) for cerebral ischaemia only,
(i) where smoking has not ceased before the clinical onset of cerebrovascular accident:
(A) smoking an average of at least five cigarettes per day or the equivalent thereof in other tobacco products, for at least the one year before the clinical onset of cerebrovascular accident; or
"alcohol" is measured by the alcohol consumption calculations utilising the Australian Standard of ten grams of alcohol per standard alcoholic drink;
"cerebral ischaemia" means a reduction or interruption of blood supply to an area of the brain;
"cigarettes per day or the equivalent thereof in other tobacco products" means either cigarettes, pipe tobacco or cigars, alone or in any combination where one tailor made cigarette approximates one gram of tobacco; or one gram of cigar, pipe or other smoking tobacco;
In accordance with cl 5 of the Statement of Principles, the factor identified must be related to the relevant service rendered by the veteran.
Step 3:- Reasonableness of the Hypothesis
The third step requires consideration of whether either of the hypotheses raised is a reasonable one for the purposes of s 120(3) of the Act. This step is not concerned with proof of the claim but relates to the question of whether there is some material which calls for a determination under s 120(1) of the Act.[13] This requirement will be met if an hypothesis fits or is consistent with the template provided by either of the factors and the associated definitions in the Statement of Principles.
[13] See Bushell v Repatriation Commission (1992) 175 CLR 408 at 415 per Mason CJ, Deane and McHugh JJ.
Clinical Onset
Each of the factors in the Statements of Principle requires consideration of the concept of clinical onset in the context of the veteran’s cerebrovascular accident. In Kaluza v Repatriation Commission (Kaluza),[14] Jacobson J summarised the effect of the decision of the Full Federal Court in Leesv Repatriation Commission[15] in the following way:[16]
[92] The meaning of the expression “clinical onset” was considered by the Full Court in Lees. The effect of what their Honours (Heerey, Moore and Kiefel JJ) said at [13] was that there is a clinical onset of a disease, either:
·when a person becomes aware of some features or symptoms which enable a doctor to say that the disease was present at that time; or
·when a finding is made on investigation which is indicative to a doctor that the disease is present.
[93] The definition therefore emphasises the need for a determination of the clinical onset by medical evidence. It is for the doctor to say when the clinical onset occurred by the presence of features or symptoms. But the clinical onset is not necessarily when the patient first sees a doctor for medical treatment.
[14] [2010] FCA 1244.
[15] (2002) 125 FCR 331
[16] [2010] FCA 1244 at [92], [93].
It is not in dispute that the veteran suffered a stroke in 1988 or that the clinical onset of his cerebrovascular accident was in 1987. Confirmation of that time-frame is given in the report, dated 18 May 1993, by Dr Emiel Neynens, Director of Extended Care at the Nambour General Hospital.[17]
[17] See Exhibit 1, T-documents, p. 60.
The smoking hypothesis
The material before me from the applicant is that the veteran commenced smoking when the applicant met him in 1950 at five cigarettes per day; that he smoked 1¼ packets (25 cigarettes) per day once he was a regular smoker; and that he further increased to two packets (40 cigarettes) per day in Butterworth. That points to a temporal increase of 15 cigarettes per day. The applicant identified causal factors for that increase as comprising lower cost and the stress of war service. She contended that the veteran maintained that level of smoking until 1987.
That summary is consistent with the terms of factor (o)(i)(A) in the Statement of Principles for cerebrovascular accident and a reasonable hypothesis of a relationship between cerebrovascular accident and service per medium of cigarette smoking is raised.
The alcohol hypothesis
The material advanced for the applicant is that the veteran was a social drinker on Friday evenings when she first met him. He consumed alcohol on Fridays and weekends from 1952 at age 21 which, in the case of beer, was in the amount of six stubbies per day when a regular drinker. This increased in Butterworth, in the form of beer and spirits. In post-Butterworth years, his consumption continued with binge drinking on Friday nights and weekends until many years after his stroke in 1988. This included the period after the veteran retired from the RAAF when his practice was to purchase, each week, a carton of beer and a bottle of rum.
Utilising the measurement in the Statement of Principles of alcohol at ten grams per standard alcoholic drink, factor (f) thereof requires an average of 25 standard drinks per week in 1986/87. The references to binge drinking on Friday nights and weekends points to that level of consumption by the veteran at that time. The material also points to a temporal increase in the veteran’s alcohol consumption during his service in Butterworth with both an increase in beer consumption and the adoption of the practice of consuming spirits. Further, the material points to reasons for that increase with references to ready availability, low cost, hot weather, frequency of social occasions and stress of war service. The applicant’s evidence also points to the maintenance of that increased level of alcohol consumption until the clinical onset of the veteran’s cerebrovascular accident.
On that basis, the material fits the template of factor (f) in the Statement of Principles and a reasonable hypothesis of a relationship between cerebrovascular accident and service per medium of alcohol consumption is raised.
Step 4:- Is Death War-caused?
As reasonable hypotheses of relevant relationships are raised between the veteran’s service and cerebrovascular accident per medium of cigarette smoking and alcohol consumption, it follows that his death from cerebrovascular accident will have been war-caused unless I am satisfied beyond reasonable doubt that such is not the case.
Smoking
The evidence in this matter is inconsistent with the smoking hypothesis. The veteran’s statements about his smoking history do not reflect a continuing habit of smoking at the level of 40 cigarettes per day until the clinical onset of his cerebrovascular accident. Two medical reports in 1984 record the veteran’s estimate of his smoking at 20 or 25 per day for the past 40 years. This equates to the applicant’s estimate of his level of smoking once he became a regular smoker which, clearly, was before he went to Butterworth. While he may have increased his smoking level while in Butterworth, I am satisfied beyond reasonable doubt that he did not maintain any service-related increase in smoking thereafter.
In addition, unlike the situation in Tuite which was referred to by Mr Harding,[18] the veteran was, before he rendered his operational service, a well-established smoker of cigarettes at a level that already far exceeded the amount required by the Statement of Principles.
[18] See para 11 (above).
I am satisfied beyond reasonable doubt that the smoking requirements of the Statement of Principles for cerebrovascular accident are not met and it follows that the veteran’s death was not war-caused by that means.
Alcohol consumption
There is no clear evidence of the quantification of the level of alcohol consumption while the veteran was in Butterworth or thereafter until he retired from the RAAF. After 1974, his consumption was described by the applicant as comprising a carton of stubbies and a bottle of rum each week. The only evidence of the level of consumption prior to his posting to Butterworth comes from the applicant. She described the veteran as a social Friday evening drinker when they met in 1950. The questionnaire, dated 24 November 2010, also describes the veteran’s consumption history and the applicant agreed that she had signed it though it was completed by a woman from a service organisation. The applicant took issue with some entries in that document. One of these was the time of meeting the veteran in 1951 in Newcastle rather than in 1950 in Brisbane; another was the reference to his drinking on each day of the week whereas he confined his alcohol consumption to Fridays and weekends; a further issue was the measure of rum consumption in metric terms about which she professed no understanding. The applicant did not dispute the references in the document to six stubbies per day as the consumption level of the veteran once he became a regular drinker at age 21 in 1952.
Some inconsistency emerges in the evidence about the veteran’s post-Butterworth consumption. The medical reports completed in 1984[19] give the veteran’s estimate of his alcohol consumption as “moderate” with only “four nips of scotch in the last 12 months” and also as being “nil” at that time. Yet, the son recalled his father appearing to be “drunk” in a telephone exchange he had with him in 1985.
[19] See paras 20 and 21 (above).
On the evidence before me, I am satisfied that the veteran was consuming six stubbies of beer on each of three days per week before his Butterworth posting. I am also satisfied that he increased his level of beer consumption and took up drinking spirits in Butterworth. This increase was not challenged and the reasons given by the applicant for his doing so are consistent with the evidence of Mr Black. While there was a social dimension to that increased level of alcohol usage, I accept that the increase was not merely temporal and was causally associated with aspects of the veteran’s service in Butterworth. In that regard, I am satisfied that there was a material difference in the nature of the veteran’s duties in Butterworth when compared with those undertaken at Amberley. This was in the size and live nature of the bombs which he was required to handle. I am also satisfied that the veteran continued to drink the increased level of beer and spirits after his Butterworth service on Fridays and weekends; and that he consumed a carton of stubbies and a bottle of rum each week from his retirement until after the clinical onset of his cerebrovascular accident in 1987.
The factor in the Statement of Principles specifically requires a service-related consumption of 25 standard drinks per week. While there is evidence by the applicant of the veteran’s “binge drinking” from 1960, the only quantification evidence is that for the periods prior to Butterworth service and after the veteran retired from the RAAF.[20] In pre-Butterworth service, with one stubby of beer equating to one standard drink, the consumption of six stubbies of beer per day is equivalent to some 18 standard drinks per week if consumed only on Fridays and weekends. On that analysis, the factor in the Statement of Principle requires that the veteran be consuming some 43 standard drinks of alcohol in 1986/7. The amount described by the applicant after 1974, being a carton of stubbies and a bottle of rum, may well be sufficient to meet a threshold of 43 standard drinks. This was not challenged by the respondent.
[20] As to the need for evidence of quantification, see East v Repatriation Commission (1987) 12 ALD 389 at 404.
For factor (f) in the Statement of Principle to be met, the consumption of the required amount of alcohol must be related to the veteran’s service. This was 27 years after his eligible war service during which time the reasons referred to by the applicant for increasing his consumption no longer pertained. Also, there is no medical evidence to identify any psychiatric condition which may have been responsible for any continuation of the increased consumption level over such a long period. Neither is that required by the Statement of Principles. Nevertheless, I nave noted and accept as correct Mr Harding’s submission that, for a factor to be causally associated with service, it need not be the sole or dominant cause providing it was a contributing cause.[21]
[21] Citing Repatriation Commission v Law (1981) 36 ALR at 411 at 420. See also Repatriation Commission, v Roncevich (2005) 222 CLR 115 at 126 [27] per McHugh, Gummow, Callinan and Heydon JJ.
.
On the material before me, I can not be satisfied beyond reasonable doubt that the veteran’s service in Butterworth was not a contributing cause to the continued level of the veteran’s alcohol post-Butterworth consumption, especially with the inclusion of spirits, until the clinical onset of his cerebrovascular accident in 1987. It follows that I am not satisfied beyond reasonable doubt that the veteran’s death from cerebrovascular accident was not war-caused, in accordance with s 8 of the Act, by that means. The applicant is entitled to be paid the widow’s pension with effect from 7 August 2011, a date set in accordance with s 177 of the Act and agreed to by the parties.
DECISION
The Tribunal sets aside the decision under review and substitutes its decision that the veteran’s death was war-caused under s 8 of the Act and that the applicant is entitled to receive the widow’s pension with effect from 7 August 2011.
I certI I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.
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Associate
Dated 8 May 2013
Date of hearing
11 April 2013
Counsel for the applicant Mr Anthony Harding
Solicitor for the applicant Mr Terence O’Connor
Representative for the respondent Mr Jeff Kelly
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