Leitch and Repatriation Commission

[2011] AATA 863

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 863

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/5478

VETERANS’ APPEALS DIVISION		)
Re		Geoff Leitch

Applicant

And Repatriation Commission

Respondent

DECISION

Tribunal Ms A F Cunningham (Senior Member)

Date7 December 2011

PlaceHobart

Decision The Tribunal affirms the decision under review.

Ms A F Cunningham
  Senior Member

CATCHWORDS

VETERANS’ ENTITLEMENTS – claim for alcohol abuse – whether condition arose from operational or defence service – meaning of inability to obtain appropriate clinical management – material contribution or aggravation of condition – decision under review affirmed.

LEGISLATION

Veterans’ Entitlements Act 1986, s 120

CASES

Briginshaw v Briginshaw (1938) 60 CLR 336

Helton v Allen (1940) 63 CLR 691

Brew v Repatriation Commission 1999 FCA 1246

Repatriation Commission v Money 2008 FCA 118

REASONS FOR DECISION

7 December 2011 Ms A F Cunningham (Senior Member)

1.      The applicant, Geoffrey Leitch, served in the Royal Australian Navy from 22 November 1969 to 22 November 1989.  On 22 May 2007 Mr Leitch made a claim for alcohol abuse, a psychiatric condition and gastro-oesophagal reflux disease, which were refused by the Repatriation Commission whose decision was affirmed by the Veterans’ Review Board.  Mr Leitch has applied for review by the Administrative Appeals Tribunal.

2.      Tribunal that Mr Leitch no longer pursued his psychiatric claim for generalised anxiety and did not rely on the medical reports of Dr Jeffrey Swift, consultant psychiatrist.  Mr Fitz further advised that the Applicant accepted the evidence contained in the Writeway report which was tendered in evidence.

3.      Mr Leitch’s service included operational service on HMAS Sydney between 21 October 1970 and 12 November 1970, and defence service from 7 December 1972 until 22 November 1989.

4.      Mr Leitch gave oral evidence at the hearing.  Other tendered evidence included: the T documents; reports of Dr Eric Ratcliff, consultant psychiatrist, dated 1 August 2007, 15 December 2008, 8 June 2010 and 16 December 2010.  A statement prepared by Mr Leitch’s sister, Cheryl Stephenson was also tendered, however Ms Stephenson was not called to give oral evidence.  Mr Leitch’s service records were tendered in evidence as were his clinical and medical progress notes.

ISSUES

As Mr Leitch’s claim for gastro-oesophageal reflux disease depends on the acceptance of his alcohol dependence/abuse condition the following issues are identified for determination:

(i)Does the applicant suffer from a condition of alcohol abuse or alcohol dependence?

(ii)If so, did the condition arise during his operational or defence service?

(iii)Was the applicant’s condition of alcohol abuse or alcohol dependence war-caused?

(iv)If so, what is the date of clinical onset?

LEGISLATION

5.      Mr Leitch’s claim for pension on the basis of his alcohol abuse/dependence is to be considered in accordance with the provisions of the Veterans’ Entitlements Act 1986 (the Act). 

6.      Section 9 of the Act states that an injury or disease contracted by a Veteran shall be taken to be war-caused if it arose out of or was attributable to any eligible war service or is deemed to be a war-caused injury or disease if it was contributed to in a material way, or was aggravated by any eligible war service.

7.      Under section 120 of the Act different standards of proof apply where the claim relates to the operational service or defence service rendered by the Veteran.  For operational service, section 120(1) provides that the Commission shall determine that the injury or disease was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making such a determination.  Where the claim relates to a period of defence service, the determination is to be decided to the reasonable satisfaction of the decision-maker.  The Tribunal and the courts have accepted that this phrase is analogous to the common law civil standard of proof, as pronounced by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336 (at 361 per Dixon J). The High Court has stated that “in a civil case the same high degree of certainty is not required as in a criminal case, but reasonable satisfaction according to the nature of the case” (see Helton v Allen (1940) 63 CLR 691 at 714).

8.      Following the 1994 amendments to the Act, the issue as to whether commonly occurring injuries or diseases are connected with a person’s service is to be determined according to legislative instruments called Statement of Principles (SoP).  The relevant SoP for alcohol dependence and alcohol abuse is Instrument No.76 of 1998 for operational service and Instrument No.77 of 1998 for defence service.  It was agreed that the subsequent SoPs impose a more astringent test and could be disregarded.

9.      Geoffrey Leitch gave evidence in relation to his current consumption of alcohol and the history of his alcohol consumption dating prior to and during his defence service.  The only expert called to give evidence was Dr Ratcliff who diagnosed Mr Leitch as suffering from alcohol abuse rather than alcohol dependence on the basis of the DSM-IV diagnostic criteria which are contained within the SoPs referred to above.  The Tribunal accepts Dr Ratcliff’s diagnosis of alcohol abuse.

10.     During the course of the respondent’s closing submissions, it was conceded the evidence supports a finding that Mr Leitch suffers from the condition of alcohol abuse which was contracted during his defence service.  The question that arises is whether the condition materially contributed to, or was aggravated by, his service.

WAS MR LEITCH’S ALCOHOL ABUSE CONTRACTED DURING OPERATIONAL OR DEFENCE SERVICE

11.     Mr Leitch’s period of operational service was brief.  It consisted of his service on HMAS Sydney between 21 October 1970 and 12 November 1970 when the troop carrier was operating in Vung Tau Harbour, Vietnam.  This period of service was within 12 months of Mr Leitch having joined the Navy.  It was recorded by the Navy psychologist that prior to enlistment Mr Leitch only drank moderately.  It was Mr Leitch’s evidence that he worked as a racehorse strapper and earned approximately six dollars per week.  He would have a few drinks every second weekend.  It was his evidence that after joining the Navy, alcohol consumption was not permitted during recruit school and that no drinking was permitted during Navy operations.

12.     There was no evidence that Mr Leitch suffered from alcohol abuse during his period of operational service.  It was Mr Leitch’s evidence that his consumption of alcohol increased over time during his service.  He recalled that during his service on HMAS Perth the bar would often be open from 4.00 pm but that he commonly consumed a couple of beers at lunch time.  Mr Leitch said that during his service on HMAS Swan he visited Singapore and Hong Kong.  After berthing it was common for the servicemen to head straight for the local bars.  He recalled that a can of beer could be purchased for 20 cents and that on most evenings he would consume between six and seven cans, which was a regular occurrence from around 1977 until he left the Navy in 1989.  Mr Radcliffe said that drinking was not discouraged by superior officers but rather viewed as an aspect of normal socialisation.  No action would be taken unless one failed to report for duty the following day.  Mr Leitch maintains that his alcohol consumption was the cause of frequent arguments with his wife which lead to their separation in 1983. 

13.     On the basis of the evidence as outlined above, the Tribunal accepts the Respondent’s concession that Mr Leitch’s alcohol abuse was contracted during his period of defence service.

WAS ALCOHOL ABUSE WAR-CAUSED

14.     The Act states that disease shall be taken to be war-caused if it arose out of or was attributable to any eligible war service.  (Section 9).  The provisions of section 120B of the Act state that the Commission can be reasonably satisfied that a disease is war-caused if the material before it raises a connection between the disease and the person’s service and there is a Statement of Principles that upholds the connection on the balance of probabilities.

15.     The factors relied upon connecting Mr Leitch’s alcohol abuse with his service are that he experienced one or more severe stressors within a year immediately before the clinical onset of alcohol abuse or alternatively, an inability to obtain appropriate clinical management. 

16.     The definition of “experiencing a severe stressor” contained in SoP Instrument No 77 of 1998 is as follows:

“means the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror”.

17.     In his claim for disability pension Mr Leitch states that he first became aware of the symptoms of his disability in 1970 and relates his alcohol abuse to his stressful service in South Vietnam.  Mr Leitch’s evidence was that he served as a member of the boat party attached to HMAS Sydney and was responsible for maintaining and running the boats which were lowered into the water from the ship for the purpose of securing barbed wire around the ship to deter saboteurs.  The crew were also responsible for detecting floating mines around the ship.  Mr Leitch recalled feeling some apprehension whilst in Vung Tau Harbour and was relieved when they left. 

18.     There is no evidence that Mr Leitch experienced a severe stressor as the term is defined in the SoP during his operational service.  As the Tribunal has found above, there is no evidence that Mr Leitch’s alcohol abuse was contracted during his operational service. 

19.     Mr Leitch also gave evidence in relation to other incidents that occurred during his period of defence service which he contended caused him some distress.  When serving as a Quarter Master on HMAS Perth in 1973 a young sailor known as PJ O’Connor was found deceased at the bottom of the dry dock.  Mr Leitch had been the last man to speak to him the previous evening and said that he was shocked and upset to learn of the young sailor’s death.  Mr Leitch was not however a close friend of the deceased and did not attend his funeral. 

20.     A second incident related by Mr Leitch was during his service on HMAS Swan when it was involved in an exercise with the Singaporean Navy in the South China Sea.  Whilst watching the bombing run exercise, Mr Leitch witnessed a pilot eject from his plane and hit the water some 1,000 yards from the ship.  The pilot was covered by his parachute and his body was never recovered.  The ship’s diver was only able to retrieve the pilot’s helmet, maps and some other debris from the water.

21.     It was Dr Ratcliff’s opinion that Mr Leitch’s alcohol abuse does not result from any particular stressful incidents experienced or witnessed by Mr Leitch but “from a naval culture of using alcohol to deal with ambient stress, and with specific stressful situations which would include the death of a sailor due to a fall from HMAS Perth in dry dock in 1973, the near collision of HMAS Swan in 1975, and a witness loss of a pilot in about 1978.”  In his report dated 8 June 2010 Dr Ratcliff stated:

“It is not possible, except in the most general terms, to relate to any specific event an increase in Mr Leitch’s consumption of alcohol to level attracting a diagnosis.” 

Further in his report 16 December 2010 he states:

“it is reasonable to suggest that alcohol was used during his naval service and became excessive during that time in terms of the amount consumed because of the tensions involved in naval service. …

My principle hypothesis remains that it was part of the naval culture during Mr Leitch’s time to use alcohol for managing any stress related symptoms, that alcohol became regularly used for this purpose and also for recreational purposes, that it was very readily available in the Petty Officer’s Mess, that such excess was regarded as normal, and if it did not produce disciplinary problems or perceptible impairment of a sailor’s efficiency it would be disregarded; there would be no counselling towards moderation, and consequently no treatment made available.

In view of the prevalence of habitual excessive drinking in the general male community, such an outcome cannot be regarded as entirely due to service.  However, a pattern of drinking developed during service and sustained thereafter is particularly common among naval ex-servicemen.”

22.     Whilst the Tribunal can accept that Mr Leitch was upset and distressed after witnessing the incidents referred to above, it is not his evidence that any of them ever evoked intense fear, helplessness or horror.  The Tribunal does not consider that these incidents could be classified as Mr Leitch having experienced a severe stressor as the term is defined in the SoP.  With respect to the death of the young sailor in dry dock, Mr Leitch did not witness his death but rather learnt of the sailor’s passing the following morning.  The Tribunal accepts that Mr Leitch viewed the pilot ejecting from his plane and falling into the sea.  This occurred at some distance and there was no evidence that Mr Leitch had any particular resulting mental anguish as a result of having witnessed this event.  Nor was there any evidence that the witnessing of such an event might have evoked intense fear, helplessness or horror.

23.     There was another incident that Mr Leitch described when the HMAS Swan was involved in a near collision during the night when he was on quarter deck watch.  The next morning the crew commented how close they were to a collision.  However, again there was no evidence that this particular incident evoked any feelings of intense fear, helplessness or horror for Mr Leitch such that the incident could be described as a severe stressor as defined in the SoP.  The Tribunal accepts Dr Ratcliff’s evidence that these incidents could be described as a stressful events and that alcohol was used as a means of dealing with such incidents.

24.     Dr Ratcliff had difficulty in identifying the date of the clinical onset of Mr Leitch’s alcohol abuse but considered that it was fairly early on and continued throughout his period of service.  It was his view that by the age of 19 or 20, Mr Leitch had acquired a substantial drinking habit. 

25.     After leaving the Navy Mr Leitch went to Western Australia in search of employment.  He undertook a bar course and worked for a number of years in the hotel industry.  He had continuous employment thereafter which included managing a music shop and as a community corrections officer for the Ministry of Justice.  He later managed a private club and then moved to Tasmania in search of other job opportunities.  He initially worked as a barman for the Bowls Club and was then offered the position of greenkeeper, which position he still holds.

26.     Mr Leitch described his current alcohol consumption.  It was Dr Ratcliff’s opinion that Mr Leitch’s level of alcohol of consumption has continued at pretty much the same level as it was during his naval service.  Dr Ratcliff commented that his employment choices as barman and in the hotel industry were associated with alcohol.  Despite Mr Leitch’s fairly significant consumption of alcohol, it was his evidence that there was only one occasion when he was spoken to by his superior officer.  This followed a social football carnival when he was involved in a car accident after leaving the Mess. He had recorded a reading of 0.16, well over the legal limit.  It was Mr Leitch’s evidence that he was not responsible for the accident which was caused by a young woman who pulled out in front of his vehicle. 

27.     Mr Leitch described his naval service as “a great life.”  He was promoted on a regular basis and after only eight years of joining the Navy, was made a Petty Officer.

28.     In response to a question as to whether he was able to manage his alcohol consumption, Mr Leitch stated that to his knowledge it had never had an effect on other people apart from his first wife.  He said that his pattern of alcohol consumption was similar to other servicemen and was accepted as the way of life.  He spoke of “the tank” which was used to deal with sailors who had disciplinary issues as a result of their alcohol consumption.  He was never sent to “the tank” and considered that he was able to control and manage his behaviour despite his alcohol consumption.

29.     The Tribunal having accepted that Mr Leitch’s alcohol abuse was contracted during the course of his defence service must now determine whether it was war-caused.  As section 120B requires, the Tribunal must be reasonably satisfied of the connection with service by reference to the relevant Statement of Principles.  The factors listed in paragraph 5 of SoP Instrument No. 77 of 1998 must relate to the veteran’s service. 

30.     For the above stated reasons, the Tribunal does not consider that subparagraph 5(b) has any application in this case.  The Tribunal is not reasonably satisfied that Mr Leitch experienced a severe stressor as the term is defined in the SoP during his period of defence service.

31.     The only other relevant factor is factor 5(e), being an inability to obtain appropriate clinical management for alcohol abuse.  Paragraph 6 of the SoP states that subparagraph 5(e) applies only to material contribution to, or aggravation of, alcohol dependence or alcohol abuse where the person’s alcohol dependence or alcohol abuse was suffered or contracted before or during (but not arising out of) the person’s relevant service.  As the Tribunal has found, Mr Leitch’s alcohol abuse was contracted during his service. 

32.     The phrase “inability to obtain appropriate clinical management” has been considered by the Tribunal and the Federal Court on a number of occasions.  In Brew v Repatriation Commission 1999 FCA 1246 Heerey J said at paragraph 3:

“However "inability" can, according to context, be used in the sense that a person is physically capable of performing some act but chooses not to do so, either because of apprehension of likely adverse consequences, or because of some powerful persuasive force.”

He goes on to state at paragraph 5:

“If doctors are present, you are "able" to obtain appropriate clinical management. Therefore there cannot be inability, whatever your reasons for not seeking treatment.”

At paragraph 6:

“If you choose not to have medical treatment by reason of apprehension of some particular consequence there can be no "inability".”

At paragraph 7:

“Para 42 reinforces this reasoning by allowing an exception only where "overwhelming psychological or emotional incapacity ... prohibit(s)" a person from obtaining appropriate clinical management. In other words, unless you are stopped by something "overwhelming", there is no inability. The concept of a choice, freely made yet made because of some serious adverse consequence, is excluded.”

33.     Heerey J considered that in the appellant’s case, being a member of the armed services working in a military establishment in war time, a group culture against seeking medical treatment could operate as a powerful disincentive, and may have amounted to an inability to obtain appropriate clinical management. 

34.     In the current case it was contended on behalf of the applicant that no appropriate clinical management was offered or made available.  Dr Ratcliff had stated that such management would not have been considered by the Navy at that time given the attitude and acceptance of alcohol consumption by the servicemen.  Dr Ratcliff did agree that this was the prevailing attitude that existed at the time in other establishments such as football, golf and other social clubs.

35.     Mr Purcell on behalf of the Respondent submitted that there is no evidence that an inability or failure to obtain appropriate clinical management made a material contribution to or aggravated Mr Leitch’s condition of alcohol abuse.  He further submitted that there were no barriers such as those discussed in the Brew decision, to Mr Leitch seeking appropriate clinical management if he had chosen to do so. 

36.     Stone J in Repatriation Commission v Money 2008 FCA 118 considered that Mr Money could not reasonably have been expected to obtain medical care beyond that offered by the Navy. 

37.     Beyond “the tank” there was no evidence presented as to what clinical management for alcohol abuse may have been available at the time.  Nor was there any evidence that Mr Leitch would have been unable to seek medical treatment or clinical management had he chosen to do so.  It was Mr Leitch’s evidence that he considered that he was able to manage his alcohol consumption and that he never missed a day’s work as a result of alcohol consumption.  The evidence was that he was progressively promoted during the course of his service and had continuous employment following service.  It was Dr Ratcliff’s evidence that he believed Mr Leitch’s alcohol consumption level remained fairly constant during and following service. 

38.     For these reasons and on the basis of the evidence presented at the hearing, the Tribunal is not reasonably satisfied that firstly, Mr Leitch was unable to obtain appropriate clinical management had he chosen to do so and secondly, even if he was, there is no evidence that the absence of appropriate clinical management made a material contribution or aggravated his condition of alcohol abuse.

39.     Accordingly there is no need for the Tribunal to determine the date of clinical onset. 

40.For these reasons the Tribunal affirms the decision under review.

I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member).

Signed:    Colleen Maquire
  Associate

Dates of Hearing  13 and 14 September 2011
Date of Decision                   7 December 2011
Representative for the Applicant               Mr R Fitz
Counsel for the Respondent  Mr G Purcell
Representative for the Respondent          Department of Veterans' Affairs