Lilley and Repatriation Commission
[2003] AATA 1261
•12 December 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1261
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V02/594
VETERANS' APPEALS DIVISION ) Re AUDREY MAY LILLEY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr J Handley, Senior Member Date12 December 2003
PlaceMelbourne
Decision The decision under review is set aside and in substitution IT IS DECIDED that the death of David Lilley was war-caused. (Sgd) J Handley
Senior Member
VETERANS’ ENTITLEMENTS – Widow’s application – death by cardiomyopathy – alcohol consumed prior to service – service overseas – traumatic and perilous events in service – whether an increase in alcohol consumption – observations of widow and colleague – decision set aside.
Veterans’ Entitlements Act 1986(Cth), s 8(1), (b)
Repatriation Act 1920(Cth), s 101(1), (b)
Statement of Principles No.19 of 1998
Statement of Principles No.23 of 1996
Repatriation Commission v Hancock (2003) FCA 711
Repatriation Commission v Law (1980) 31 ALR 140
Repatriation Commission v Law (1981) 36 ALR 411
Repatriation Commission v Tuite (1993) 17 AAR 158
REASONS FOR DECISION
12 December 2003 Mr J Handley, Senior Member 1. The applicant applies to review a decision made by the Veterans’ Review Board (“VRB”) on 27 March 2002 which then affirmed a decision previously made by the respondent. The respondent had decided that a claim made by Mrs Lilley for widow’s pension be refused.
2. Mrs Lilley is the widow of the late David Lilley who was born on 5 November 1914 and who died on 13 October 2000. Mr Lilley was 27 years of age when he enlisted in the Royal Australian Air Force on 30 January 1942 as an airman. He was discharged as an airman on 16 August 1943 but was appointed as a pilot officer on 17 August 1943. He was discharged from service on 27 February 1946. Mr Lilley served in Australia, England and in Canada. His service also involved attachment to the Royal Canadian Air Force and the Royal Air Force.
3. The cause of death of Mr Lilley (then aged 85 years) was certified as “Congestive cardiac failure; Cardiomegaly; Carcinoma bowel”.. Mr Lilley was cremated without autopsy.
4. Mr De Marchi appeared on behalf of Mrs Lilley and Mr Douglass appeared on behalf of the respondent. Mrs Lilley gave evidence on the first day of hearing in Bendigo, and upon the matter resuming in Melbourne, evidence was given by Dr Byron Collins, a consultant forensic pathologist, and by Mr David Brookman, a former service colleague of the late Mr Lilley.
5. There was a considerable delay before the resumption of the hearing in order for both parties to investigate new hypotheses which emerged arising out of the evidence of Mrs Lilley in Bendigo. When the matter resumed, there were four hypotheses advanced by Mr De Marchi which he submitted supported the applicant’s case. Those hypotheses, which he submitted were reasonable, extended to the potential of a finding that a connection existed between service and death by reason of the injuries of cardiomegaly, cardiomyopathy, pulmonary embolism (including a secondary hypothesis of deep venous thrombosis) and carcinoma of bowel.
6. The hypothesis with respect to pulmonary embolism was said to be connected with service by reason of the deceased suffering immobility (the respondent having previously accepted as war-caused the condition of osteoarthrosis of his knees). The other three hypotheses were said to have a connection with the consumption of alcohol which was said to have an association with service.
7. After evidence had been heard on the second day of hearing from Dr Byron Collins and from Mr Brookman, a number of concessions were made by the respondent (properly in my view) which considerably reduced the scope of this review.
8. A Statement of Principle No.19 of 1998 entitled “Cardiomyopathy” contains a number of factors which must exist as a minimum, before it could be said that a reasonable hypothesis has been raised connecting cardiomyopathy and death from it, with the circumstances of relevant service. The factor upon which Mr De Marchi relied was 5(b) namely:
(b)for men, drinking at least 250kg of alcohol (contained within alcoholic drinks) within any 10 year period before the clinical onset of secondary cardiomyopathy.
9. It was agreed between the parties that 250 kilograms of alcohol over a ten year period was an average of two, 26 ounce bottles of full strength beer per day. Whilst that quantity of consumption would vary depending on whether beer was of full strength alcohol or reduced alcohol, or whether the alcohol consumed was in a different type of drink (eg. wine or spirits), for the purposes of this application, little turned on it because the respondent conceded that the veteran would have consumed at least 250 kilograms of alcohol within a ten year period before the clinical onset of secondary cardiomyopathy. The concession of the respondent extended to the clinical onset of secondary cardiomyopathy, being sometime prior to 1985 of the deceased also suffering from secondary cardiomyopathy as defined at paragraph 7 of the Instrument.
10. Mr De Marchi also pursued a hypothesis of death by bowel cancer. That condition was not conceded by the respondent however Instrument No.23 of 1996 contains a similar factor to the factor upon which there was reliance with respect to the hypothesis of cardiomyopathy, save that the consumption of 250 kilograms of alcohol would have had to have been consumed in any 25 year period before the clinical onset of malignant neoplasm of the colon. Little will turn on this issue because I am not satisfied, on the balance of probabilities, that there can be a finding of death by bowel cancer.
11. It was submitted by Mr De Marchi that the certified cause of death of bowel cancer was sufficient to establish that death was by that cause. He submitted that there was no onus of proof under the Veterans’ Entitlements Act 1986 and in the event that the respondent challenged that certified cause, it was obliged to produce evidence or point to material which would disprove that finding.
12. The history with respect to the colon cancer may be briefly summarised as follows.
13. Mr Lilley was referred by his treating local medical officer, Dr Jarman, to Mr Vellar at the St. Vincent’s Private Hospital in October 1995. A polypoid carcinoma was found in his sigmoid colon. Surgery was recommended and a hemicolectomy was subsequently performed. A “Dukes’ A” adenocarcinoma was found.
14. In February 1997 Dr Bernard Clarke, the deceased’s treating physician in Melbourne, was concerned about Mr Lilley’s weight loss and suggested that he have a “complete reappraisal” as to whether there was a recurrence of the malignancy or whether he was then suffering from some other illness. It was then noticed that he “had lost interest in eating” (refer report of Dr Clarke dated 11 February 1997). On 17 February, Mr Lilley was admitted to St. Vincent’s Hospital but discharged on 20 February with the discharge notes recording “after extensive investigation…….. there was no evidence that he had any recurrence of malignant illness or indeed any presence of malignant illness”. Dr Clarke reaffirmed that opinion in another report to Dr Jarman on 27 February 1997.
15. Thereafter, having regard to the extensive medical files lodged in this application, there is nothing to suggest that Mr Lilley suffered any recurrence of the carcinoma nor that it had become metastatic. A suspicion was raised that by reason of a considerable loss of weight endured by Mr Lilley that he was suffering from a carcinoma, either primary or secondary, however there are a number of references in the file of the Nagambie Bush Nursing Hospital to the late Mr Lilley being anorexic.
16. On balance therefore I am satisfied that the cancer of the bowel was not responsible, in whole or part, for his death. I am at a loss to understand why Dr Kosky, the LMO at the time of Mr Lilley’s death and who had been treating him for a number of years previously certified it as a cause. There is no material that points to it. This finding is made by reference to a review of the entirety of the Nagambie Bush Nursing Hospital file, the extensive file of Dr Kosky, and the T-documents.
17. I am satisfied on the balance of probabilities that the conditions of congestive cardiac failure and cardiomegaly are symptoms or features of the condition of cardiomyopathy which were responsible for the death of Mr Lilley (refer paragraphs 8 and 9 of Repatriation Commission v Hancock (2003) FCA 711).
18. Having regard therefore to the concessions made by the respondent, with respect to the presence of this condition, the concession as to the quantity of alcohol consumed being consistent with the minimum prescribed by the Statement of Principle and the concession by the respondent that the condition of cardiomegaly was responsible for death, (concessions of which I agree were properly made), this review is concerned only with the relationship between service and alcohol consumption. Mr De Marchi conceded the deceased did drink alcohol prior to enlistment. He agreed that there was an issue of whether there was an increase in the consumption of alcohol and whether it arose out of, or was attributable to, service.
Audrey May Lilley
19. Mrs Lilley gave evidence in Bendigo on the first day of hearing. She adopted a statement that she lodged prior to the hearing dated 12 December 2002 which was received into evidence as Exhibit A. That statement is reproduced as follows:
I, AUDREY MAY LILLEY of 5 Glencairn Lane, Nagambie in the state of Victoria state as follows:
1.I met my husband DAVID LILLEY in 1944. We were married in 1945.
2.My husband served in the Royal Australian Air Force from 30 January 1942, to 27 February 1946. He served in Canada and the United Kingdom and had rendered operational service.
3.My husband was a moderate drinker before his service. When he returned from overseas service I noticed he had become a very heavy drinker. He would quite often become intoxicated.
4.After service he would go to the pub after work. He would come home tipsy, and he would then drink another large bottle of beer.
5.If he drank wine. his joints would swell up.
6.In his later years he changed to drinking scotch and beer.
7.My husband told me that he was involved in a number of emotionally traumatic events during his service. On one occasion he was in an aeroplane below another, which was dropping bombs. On another occasion the navigator in my husband's plane was injured. My husband tended him during the flight back to base, but the navigator died anyway.
8.After his service, my husband was very nervous, and he used to drink to relax him and calm him down. I did not like him drinking, but he did it anyway. He was a very heavy drinker until his illness.
20.
In evidence Mrs Lilley confirmed that her husband was a moderate drinker of alcohol prior to service but was unable to explain why he recorded on his
pre-enlistment medical application that he was a non-drinker of alcohol. She was also asked whether she could explain why there were few references within her husband’s medical records of his consumption of alcohol and whether she thought he would have been embarrassed to disclose the consumption that she alleged. She said that her husband did not speak to her of his attendances at doctors and did not know whether he would have been embarrassed or whether he would have minimised the alcohol consumption if he had been asked about it from the doctors. When asked whether she could explain a note in 1995 in her husband’s records that he was not then consuming beer, she said that at that time he was drinking spirits. She was aware that Dr Clarke, a physician, who treated her husband for many years, had described her husband as being a “social drinker” yet she said that her husband would not have told Dr Clarke of his habit of alcohol consumption.
21. Mrs Lilley said that her husband was upset about some of his experiences in service. She referred in her statement, and in evidence, to an episode where he nursed a colleague who had been wounded in service but who had eventually died. She said that her husband had been affected by the death of that person to the extent that he was “sent to Leeds to sort him out”. She said her husband had also been offered therapy and counselling. Mrs Lilley recalled that the navigator who had died had been a member of her husband’s flight crew and was a person with whom her husband had socialised on one or two occasions per week. She recalled that there was an occasion when her husband referred to the navigator as “a poor bloke – why should he suffer like that”.
22. Mrs Lilley said that her husband eventually became “nervy” and was “churned up”. She said that he would sometimes panic and on occasions when her husband and others would travel to Scotland for recreation, they would “get on the grog”.. She had frequent association with her husband prior to their marriage and during service. She recalled that his pattern of alcohol consumption increased considerably in service and that he was drinking greater quantities of alcohol during periods of leave than quantities he had consumed whilst on base. She understood that her husband drank greater quantities of alcohol during recreation as a reaction to his experiences in service.
23. After she and her husband returned to Australia, Mrs Lilley recalled that her husband returned to work at a grocery store owned by his father in Swan Hill which also had a licence to sell alcohol. She said that her husband used to “slosh it away” with his friends, that he drank alcohol at lunchtimes and on weekends he would drink more than one dozen large bottles of beer. She said he would drink alcohol at the end of each day and would then drink alcohol when he arrived at home each evening. She recalled that later in his life he became ill for reasons which were believed to be associated with the consumption of beer and her husband then drank spirits.
24. Mrs Lilley said there was an occasion when she and her husband held the licence for the Murchason East Hotel where she then asked him to consume less alcohol because he was “drinking away the profits”.
David Brookman
25. Mr Brookman is a former service colleague of the late Mr Lilley who served in his flight crew in the United Kingdom.
26. Mr Brookman prepared a statement dated 4 March 2003 which was received into evidence as Exhibit B. It is reproduced as follows:
RE Mrs Audrey Lilley & Repatriation Commission Your Ref K2275
In reply to your letter IB:BG of 29th February, I advise that –
I did not see a great deal of David Lilley after the events of October 14/15 1944 when he had the thankless task of dressing the terrible head wounds of the navigator John Turner, administering Morphine and trying to keep him comfortable for the 4 hour trip back from the target to England. John died later that morning, as David was released from flying duties afterwards.
On returning to Australia after the war I met David on a number of occasions in pubs and at annual Squadron reunions and noticed that his demeanour had changed, he was drinking heavily and seemed on edge and nervy, I had seen him previously as relaxed and easy going.
I feel that he felt he was ill-equipped to cope with his friend John Turner’s wounds and felt responsible for his death and in asking to be grounded let down the rest of the crew, also the possible personal stigma attaching to such an outcome, commenced drinking excessively to relieve the resulting stress.
27. Mr Brookman said that both he and Mr Lilley were members of the 461 Squadron. He said that he and Mr Lilley trained together and he became a gunner and Mr Lilley became a wireless operator/gunner. He said Mr Lilley was an officer and because he was an NCO, they did not share the same mess. He said Mr Lilley would have been entitled to the benefits of the officer’s mess which did not ration the availability of alcohol. He recalled that he and Mr Lilley and other members of his crew would drink on a social basis. He recalled Mr Lilley preferred beer and he regarded him as being a social drinker of alcohol.
28. Mr Brookman described a sortie in October 1944 where another member of the flight crew was severely wounded and ultimately died. Mr Brookman recalled that was the 6th sortie that the 461 Squadron had been engaged in and that Mr Lilley had requested that he be removed from flying duties after that episode but did undertake another 4 sorties. He could not then recall any “changes” in Mr Lilley at or about that time but said that “everyone was keyed up”. He recalled that after Mr Lilley ceased flying he had been posted to Brighton in southern England and thereafter he did not see much of him until reunions in Melbourne in the early 1950’s. Thereafter Mr Brookman said he would also meet with Mr Lilley from time to time at Naughtons Hotel in Melbourne where they would drink beer.
29. He recalled Mr Lilley was then “nervy” and on edge. He did not then know why but on reflection he thought that it may have been because of his experiences in October 1944.
30. Mr Brookman said that he could not recall bombing around the Waddington Base (refer statement of Mrs Lilley), nor did he know of Mr Lilley travelling to Scotland during periods of recreation leave. He did say however that he was aware that Mr Lilley was apparently drinking more alcohol after he was discharged than he had been drinking whilst in service. He said that despite giving evidence in these proceedings more than 50 years after discharge from service, he still has a clear recollection of Mr Lilley drinking more alcohol (than during service) and drinking alcohol on a more regular basis than he had in service. He said that he recalled occasions in the 1950’s when hotels were prohibited from serving alcohol after 6pm. He said that he and Mr Lilley would purchase a number of rounds of beer shortly prior to 6pm and consume it before leaving the hotel.
Service Medical Records
31. The respondent lodged the deceased’s service medical file which was received into evidence as Exhibit 1. The file comprises 9 pages and at pages 1 to 4 inclusive is a report completed by a neuropsychiatrist at a hospital attached to the Royal Air Force base at Waddington. The report is dated 14 November 1944. The report also incorporates notes of a unit medical officer which gives a history of a number of events apparently affecting the late Mr Lilley, in or around October 1944.
32. Only part of this report is reproduced in the T-documents (refer pages 22 and 23). The entire report as found within the service medical file is reproduced as follows:
This Officer who has done 10 sorties, states that he is unable to “take” further operational flying, that he becomes extremely nervous and panicky in the air on operations, and that as a result, he is worried about letting his crew down. He says that this panic effects him so much approaching, and in the target area that he cannot do his job properly.
He has always been a little nervous of flying, but he does not think abnormally so until such time as he began operations, when it became an effort to quell these fears. On an operational sortie on the night of 14/15 October, 1944 the aircraft was hit by falling incendiaries and badly damaged. The navigator was hit by one of these, received severe head injuries from which he later died in hospital. It devolved upon F.O. Lilley to render first aid, which he apparently did quite well (though he expresses doubts about this himself): the circumstances rendered this a particularly trying experience. His next trip was about 4 days later and he became panicky in the target area though he managed to complete his job. Two days later on another sortie one engine of the aircraft was knocked out by flak – and this shook him up a little more. He hung on however, thinking that his leave, which was due two days later, would tide him over this period. However, since his return from leave he has done two more trips – not particularly bad ones – which finally decided him to throw in his hand as he fears are now almost insuperable; - this was after a period of wavering – when he was encouraged to carry on by the Squadron Commander.
Has had two slight attacks of airsickness on last two trips which can be accounted for by flying conditions – other members of the crew and of other crews having similar experiences.
His previous history and family history do not suggest any predisposition to neurotic manifestations; he was a grocer in a small quiet country town in which he had lived all his life before joining the Air Force.
The only domestic stresses I can elicit are the death of his mother prior to his leaving Australia 2 ½ years ago and a broken engagement 2 months ago neither of which seem to have affected him unduly.
Physical examinations reveals no abnormality beyond a slight fine tremor of the fingers and tongue and some sweating of the palms.
Would neuropsychiatrist please express an opinion on the disposal of this case.
Sgd. A.J. Harker S. Ldr.
Specialist Report
For history see notes of unit Medical Officer. This Officer has carried out 10 operational sorties as W.Opr/A.G. of a Lancaster. He states that he always felt somewhat tense on operations, but these feelings became more marked after his 6th sortie when he met with an unpleasant experience. He begun to feel more nervous and apprehensive in the air, and tense and tremulous when nearing the target area, so much so that at times he found difficulty in concentrating on his duty. On the ground he felt quite well. He says that he dislikes the thought of “throwing in his hand” and is quite prepared to do another sortie, but does not feel that he will be able to complete a tour.
According to his previous history he was always inclined to worry over things; he was of rather obsessional make-up and would have to check and re-check to make sure that he had done things satisfactorily.
He cannot be said to show any particular predisposition to neurosis. His family history is satisfactory.
This man strikes me as a conscientious type who is inclined to worry a little unduly but he shows no signs of nervous illness which render him medically unfit for full flying duties. He is lacking confidences, although prepared to try and carry on, and his disposal is therefore a matter for executive consideration.
Std. S. Gates S/Ldr.
Neuropsychiatrist.
R.A.F. Hospital, Rauceby
33. The medical file also contains a report of examination of 28 July 1961 where the applicant was then recorded as being a “light drinker” (page 5). At a further examination on 14 August 1961, a doctor on behalf of the Repatriation Commission (to whom the applicant was referred by his LMO – Mr Lilley was then apparently being treated for leg cramps and a throat infection) observed the applicant to be “nervy++”. In a questionnaire dated 10 August 1961 (apparently produced arising out of a claim that the late Mr Lilley then made – the details of which are unknown) the former employer of Mr Lilley was asked to describe his “habits and sobriety during employment”.. The answer provided in the questionnaire by the employer was “no complaints”.
34. The T-documents have some limited medical data and other material relating to the deceased’s consumption of alcohol. At page 3 is the report of an examination upon entry into the flying ranks of the RAAF dated 30 July 1941. The form is signed by Mr Lilley and the examining doctor recorded the “Alcohol - No” (page 3). In the claim for pension lodged by Mrs Lilley in February 2001, question 26 asks “Did the veteran ever consume alcohol?” She has ticked a box beside the word “yes” and recorded the following beside it “Very little. He used to enjoy a few with his mates once, a while ago. A few years ago. At their meetings” (page 31).
35. In a letter to an officer of the respondent in October 2001 – apparently following a telephone conversation previously – Mrs Lilley recorded in part “when I mention him not drinking that was about the last four years of his life. That is why when I was asked if he drank I said no. But when he was in the RAAF, and for many years after, at least about 50/51 years he liked his grog”.
36. The file of Dr Kosky contains few references to the deceased’s consumption of alcohol. So far as I can discern and interpret from the handwritten notes, on 6 July 1983 Mr Lilley was found to suffer from nocturnal indigestion (“after beer – burning – only comes on after beer”). Dr Kosky recorded that Mr Lilley was “still drinking 1 bottle of beer per day”. On 9 July 1995 in the midst of notes concerning the findings upon an examination the LMO recorded “not drinking any beer at all”.
37. The file of the Nagambie Hospital records that Mr Lilley was admitted on a number of occasions. On 12 July 2000 (approximately four months prior to his demise) Dr Kosky admitted him. It was noted by the doctor “he is not eating – so admit to rehydrate”. Later that day the nursing notes record that he “appears to have lost weight – emaciated, skin dry. Appetite very poor at home”. It was later noted on the day of admission “Dave has brought in 2 bottles of stout –will ask doctor if it is OK to consume before evening meal!”
38. Dr Clarke in a report to the respondent of 27 February 2003 (Exhibit 5) recorded that Mr Lilley was a “social drinker. I would stand correction (sic) about alcohol consumption from Mrs. Lilley but my records do not have evidence to the contrary”.
Submissions
39. Mr De Marchi relied on the provisions of s8(1)(b) and (d) of the Veterans’ Entitlements Act 1986 and upon the decision of Repatriation Commission v Law (1980) 31 ALR 140.
40. It was submitted that there was material pointing to causation by service of an increase in alcohol consumption precipitating death by cardiomyopathy. Mr De Marchi referred to the deceased being a social drinker before service only but by service he became “initiated into alcohol”, he had access to the officer’s mess, he was exposed to pressure and conflict by operations as a flight officer and consumed alcohol to relieve stress.
41. The late Mr Lilley was also observed by his wife and Mr Brookman as being a person who was “churned up” and “nervy” who resorted to alcohol excessively.
42. In all the circumstances it was submitted that the service of the late Mr Lilley was a contributing factor to an increase in his alcohol consumption which in turn contributed to his death.
43. Mr Douglass submitted that the bowel cancer was not relevant to the cause of death. He submitted that whilst it was conceded that the deceased did suffer from secondary cardiomyopathy and the requisite minimum quantity of alcohol had been consumed, there was no material which pointed to an increase in alcohol consumption which could be found to be attributable to service.
44. It was submitted that the late Mr Lilley had a well-established drinking habit prior to service and was 28 years of age upon enlistment. He had previously worked in a licensed grocery store owned by his father and alcoholic stepmother. The documents record that the late Mr Lilley enjoyed beer drinking prior to service and within service he consumed the same quantity of alcohol as other crew members.
45. By reason of his age upon enlistment Mr Lilley could not be found to be a young impressionable youth coming from an alcohol free background being subject to peer pressures of adults which is often the case with veterans who commence an alcohol habit after enlistment. He was of mature age upon enlistment and there was nothing about his service which points to any increase in alcohol consumption during or after service. Indeed it was noted that evidence was heard from Mr Brookman that Mr Lilley in fact worked in a hotel in Footscray (which was previously unknown) after enlistment and the quantities of alcohol consumed subsequently, as observed by Mr Brookman, were no different to that which was consumed during service in the United Kingdom.
46. It was noted, upon the evidence of Mrs Lilley that her husband was upset by the death of family members after he was discharged and was also upset when his parents’ family business had been sold. Mrs Lilley did not meet her husband until 1944 and knew little of his previous domestic environment.
47. A combination of all these circumstances suggested on the part of the respondent, that there was no material pointing to an increase in alcohol consumption by reason of service.
Conclusion and Reasons for Decision
48. Section 8(b) of the Veterans’ Entitlements Act 1986 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.
49. The forerunner to that section was s101(1)(b) of the Repatriation Act 1920. The section was considered in Repatriation Commission v Law (1980) 31 ALR 140 where at page 151 the Full Court unanimously decided:
It seems clear that the expression “attributable to” in each case involves an element of causation. The cause need not be the sole or dominant cause: it is sufficient to show “attributability” if the cause is one of a number of causes provided it is a contributing cause. Under s 101(1)(b), it is sufficient to show “attributability” if a member’s war service is a contributing cause to the incapacity or death in respect of which the claim is made.
50. That decision was the subject of an appeal to the High Court but was dismissed (refer Repatriation Commission v Law (1981) 36 ALR 411).
51. This is an application where the respondent has properly made concessions which have reduced the ambit of this review which is now confined only to whether, upon the beneficial standard of proof (by reason of the deceased’s overseas service), there is material pointing to an increase in the alcohol consumed by the deceased by reason of his service.
52. Necessarily in all cases involving the death of a veteran, the best evidence is no longer available. This is somewhat remedied by the oral evidence of a surviving widow and other service comrades. Relevant documentation and the experience of the Tribunal in similar cases can also assist. However interpretation, assumption and judgement based on the experience of other veterans and their widows also will be called upon.
53. In the present circumstance, it is clear that the late Mr Lilley did consume alcohol prior to service. Mrs Lilley described him as being a “moderate drinker” and it is known that he was drinking alcohol shortly after enlistment when he was undertaking training (refer evidence of Mr Brookman). It is not apparent why Mr Lilley apparently disclosed upon enlistment that he did not consume alcohol. Additionally it is not apparent why there are few references in the medical records to his consumption of alcohol although evidence is frequently heard in applications at this Tribunal from veterans and widows that many veterans are reluctant to admit to alcohol consumption, more so when enquiry is made of a treating medical practitioner.
54. Accordingly a number of surrounding circumstances must be examined in the present review.
55. The hearing with respect to the deceased’s service was largely concerned with the reaction of the late Mr Lilley to him having nursed a wounded service comrade for a period of four or five hours but where that colleague eventually died. Thereafter Mr Lilley apparently requested being taken off flight duties but did participate in another four sorties. A close analysis of the report found within the medical records (refer earlier) which was not apparent from the T-documents reveals that Mr Lilley was also exposed to another trauma some six days later when on the 8th sortie “one engine of the aircraft was knocked out by flak – and this shook him up a little more” (medical records, page 2). Those same records also refer to the late Mr Lilley being “a little nervous of flying” (which arguably is not desirable in a flight officer in an aircrew during WWII over Europe). On the first sortie after the episode of having nursed his colleague, he was found to be “panicky” and eventually – although his fears were “almost insuperable”, he was encouraged to undertake two further sorties (page 2). The neuropsychiatrist who examined Mr Lilley in November 1944, being the month after the episodes described above, recorded that his previous history and family history did not “suggest any predisposition to neurotic manifestations, he was a grocer in a small quiet country town in which he had lived all his life before joining the Air Force”. The only domestic stress that could be elicited by the examining doctor was the death of the deceased’s mother two and a half years previously, and a previous broken engagement which the doctor recorded “neither of which seem to have affected him unduly”.
56. When the events in service are more comprehensively examined, it is not hard to imagine that Mr Lilley would find comfort in alcohol which was in fact the evidence given by his wife and Mr Brookman. It would appear from the above records that Mr Lilley was a person who was nervous of flying and who was engaged in a sortie where one engine of his aircraft was “knocked out by flak”, which occurred six days after he had nursed a wounded comrade after their aircraft had also been struck by enemy fire. It is not hard to imagine in those circumstances that there would be a reaction on the part of Mr Lilley manifesting, on the one hand, by him requesting relief from flying duties and subsequently becoming “more nervous and apprehensive in the air, and tense and tremulous when nearing the target area, so much so that at times he found difficulty on concentrating on his duty” (page 3).
57. There was evidence from Mrs Lilley that her husband travelled to Scotland during periods of leave where he and other colleagues would “get on the grog”.. There was also evidence that he was referred for counselling or therapy in Leeds during service.
58. Mrs Lilley also gave evidence that upon her return to Australia (apparently six months after her husband had returned) there was much to indicate that he was drinking alcohol excessively during the day and at night and inconsiderable quantities during weekends. Perhaps it was unwise for Mr and Mrs Lilley to ultimately purchase a hotel but Mrs Lilley recalled asking her husband to reduce his alcohol consumption because he was “drinking the profits”. Mr Lilley did apparently reduce or eliminate his consumption of beer but then commenced to consume spirits.
59. On balance I have little doubt that there was a considerable increase in the quantity of alcohol consumed by the late Mr Lilley subsequent to service, which in my view, had its genesis in the conditions of his service and the events to which he was exposed. Little is known about the extent of the deceased’s alcohol consumption prior to enlistment, save that it is known that he did drink. A combination of the observations of Mrs Lilley and the descriptions of his alcohol consumption as she and Mr Brookman recalled, set against a background of frightening and distressing events in service suggest that alcohol was consumed in significantly greater quantities after enlistment which was attributable by service. I would add that it is unlikely Mr Lilley would qualified for enlistment – indeed been accepted for flight crew – if he had a history of excessive alcohol consumption.
60. There may be some merit in the contention of Mr Douglass that the deceased was a mature aged person upon enlistment and would not have been subject to peer pressures. I note that a similar submission was made on the behalf of the respondent in the Federal Court decision of Repatriation Commission v Tuite (1993) 17 AAR 158 at 159. Whilst Tuite has a similar factual basis, it was decided under s9(1)(b), whereas s8(1)(a) applies in this application. Tuite involved a 24 year old person upon enlistment who submitted that he subsequently developed a smoking related illness by reason of commencing a smoking habit in service. The Tribunal was not persuaded by the submission. It found that the circumstances of “camp life” were capable of having a causal influence upon the veteran to take up smoking and the applicant’s age upon enlistment was not a relevant consideration.
61. There were events in the deceased’s life prior to service which might have caused upset and may have caused a resort to alcohol. Those events would include the death of his mother, the sale of a family business, the relationship with his stepmother, and the death of other family members. All of those events are circumstances to which many people are exposed in an ordinary lifetime.. Few people however are exposed to the extraordinary events to which the late Mr Lilley was exposed, as a flight officer, in wartime over Europe and over England in circumstances as recorded in the medical records. I am satisfied that there was an increase in alcohol consumption to which service was a contributing cause. I am not satisfied that his personal and domestic circumstances as a civilian contributed to an increase in his alcohol consumption.
62. In all of the circumstances the decision under review should be set aside and in substitution it is decided that the death of the late David Lilley was war-caused.
I certify that the 63 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J Handley,
Senior Member.Signed: Elsa Genovese
Personal AssistantDate/s of Hearing 4 April (Bendigo), 17 June, 12 November 2003 (Melbourne)
Date of Decision 12 December 2003
Solicitor for the Applicant Mr D De Marchi
Counsel for the Respondent Mr R Douglass
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