Lynette Kay Humble and Repatriation Commission
[2016] AATA 123
•2 March 2016
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2015/1973
Veterans' Appeals Division )Re: Lynette Humble
Applicant
And: Repatriation Commission
RespondentCORRIGENDUM TO DECISION
TRIBUNAL: Egon Fice, Senior Member
DATE: 18 March 2016
PLACE: Melbourne
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application.
- Delete the words this is the appropriate date on which this determination should come into effect in accordance with s. 20 of the VE Act at paragraph 80 of the decision and replace them with the appropriate date on which this determination should come into effect is 20 October 2013, in accordance with s 13, s. 20 and s177 of the VE Act.
.........................[sgd]........................
Humble and Repatriation Commission (Veterans’ entitlements) [2016] AATA 123 (2 March 2016)
Division
VETERANS' APPEALS DIVISION
File Number
2015/1973
Re
Lynette Kay Humble
APPLICANT
And
Repatriation Commission
RESPONDENT
Decision
Tribunal Egon Fice, Senior Member
Date 2 March 2016 Place Melbourne The decision under review dated 20 March 2015 is set aside and in substitution the Tribunal determines that the death of Mr Alan Humble was war-caused as that expression is defined in the Veterans' Entitlements Act 1986 (Cth).
[sgd]..................................................................
Egon Fice, Senior Member
VETERANS – entitlements – war widow’s pension – war caused condition – existence of reasonable hypothesis– sufficient ground for making determination - alcohol consumption - alcoholic cardiomyopathy
Legislation
Veterans’ Entitlements Act 1986 (Cth) ss 7, 8, 20, 120, 196B
Statement of Principles No. 85 (2015) (Cth)
Statement of Principles No. 23 (2007) (Cth)
Cases
Brennan v Comcare (1994) 50 FCR 555
East v Repatriation Commission (1997) 16 FCR 517
Grant v Repatriation Commission (1999) 57 ALD 1, 6
Miller v Minister of Pensions [1947] 2 All ER 372
Ogden Industries Pty Ltd v Lucas (1970) AC 113
Re Del and Repatriation Commission (1986) 5 AAR 253, 254 – 255
Rejfek v McElroy and Another (1965) 112 CLR 517, 521 – 522
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton (2001] 110 FCR 321Repatriation Commission v Hill (2003) 69 ALD 581, 596
Repatriation Commission v Keely (2000) 98 FCR 108, 15
Secondary Materials
Australian Drug Foundation, What is a standard drink number 1.25 (2009) Drug info Of Health, The Australian Standard Drink (2012) Memorandum, Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Bill 1994 (Cth) 7-8.
Vardara D.R. (ed), Egan E.J., Taber’s Cyclopedic Medical Dictionary (F.A. Davis Company, 17th ed, 1989)
REASONS FOR DECISION
Egon Fice, Senior Member
On 20 January 2014 Mrs Lynette Humble lodged a claim with the Department of Veterans’ Affairs for a widow’s pension on the grounds that the death of her husband, Mr Alan Humble, was service related. Mr Humble served in the Royal Australian Navy (RAN) from 16 January 1961 to 15 January 1970. He had operational service between 15 April and 8 May 1963 and between 10 May 1963 and 25 May 1963 when attached to the Far Eastern Strategic Reserve; and on two occasions in South Vietnamese waters between 31 May 1965 and 22 June 1965 and between 7 March 1967 and 27 September 1967.
Mr and Mrs Humble were married on 12 November 1965. Although Mrs Humble testified that they separated in 1984, she said they maintained their relationship and never divorced. In November 1990 Mr Humble was diagnosed with alcoholic cardiomyopathy. He died on 4 January 2006. His death certificate records the cause of death and duration of last illness as follows:
staphylococcal auroreus-weeks
septicaemia
bilateral pneumonia-weeks
congestive cardiac failure (alcoholic cardiomyopathy)-years
The parties accepted that the medical cause of Mr Humble’s death was congestive cardiac failure (alcoholic cardiomyopathy).
The only issue I am required to determine is whether Mr Humble’s death was war-caused as that expression is defined in s. 8 of the Veterans’ Entitlements Act 1986 (the VE Act). Relevantly, s. 8 provides:
8 War-caused death
(1) Subject to this section and section 9A, for the purposes of this Act, the death of the veteran shall be taken to being war-caused if:
(a)the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service; [or]
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;…
Section 7 of the VE Act provides that a person who has rendered operational service is taken to have been rendering eligible war service while the person was rendering operational service.
Was Mr Humble’s death war-caused
There being no issue about the fact that Mr Humble had operational service, the standard of proof in this case is that set out in s. 120(1) of the VE Act. Furthermore, his death need not have been caused while Mr Humble was rendering operational service, but it is sufficient that it may be attributable to that service. As the Full Court of the Federal Court of Australia (Lee and Cooper JJ) said in Repatriation Commission v Keely (2000) 98 FCR 108, at 15:
It is to be noted that in respect of the veteran who rendered “operational service”, s 8(1)(a) contemplates that the link between the death of the veteran and the war service rendered may be no more than temporal. Where s 8(1)(a) refers to “an occurrence that happened while the veteran was rendering operational service”, it is not necessary that the occurrence arose out of, or was attributable to, the “operational service”. That is, the connection between the event, or events, and the “operational service” may be coincidental and not causal. Furthermore, the occurrence may be an event with a direct consequence, such as the suffering of an injury or contraction of a disease, or it may be an event, or series of events, with a latent or delayed consequence in which the effect of an injury, or onset of the disease, is not manifested until some later date. Irrespective of when the consequence is manifested, the event, or series of events, would be an occurrence that happened while the veteran was rendering “operational service”.
While the process of determination usually undertaken is that referred to by the Full Court of the Federal Court of Australia in Repatriation Commission v Deledio (1998) 83 FCR 82, for reasons which will become apparent shortly, I intend to simply follow the legislative provisions. The starting point in a case where the veteran has had operational service is the reverse negative onus of proof provision in s. 120(1) of the VE Act. It provides:
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 the death of the 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.
Bearing in mind the standard of proof provision, I am required to consider the whole of the material before the Tribunal before determining whether a reasonable hypothesis connecting, in this case, Mr Humble’s death, with the circumstances of the service rendered by him. Section 120(3) provides:
(2) 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 the person, related to the 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 will defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before, 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.
Nothing in the provisions set out in the VE Act entitles the Repatriation Commission (the Commission) to presume that the death of a person is war-caused or defence-caused (s. 120 (5)). Furthermore, nothing in the VE Act can be taken to impose on an applicant, the Commonwealth or the Department ,or any other person in relation to a claim application, any onus of proving any matter that is, or might be, relevant to the determination of the claim or application (s. 120 (6)).
Since the introduction of the Statement of Principles (SOP[s]), when dealing with claims made on or after 1 June 1994 that relate to the operational service rendered by a veteran, the reasonableness of a hypothesis must be assessed by reference to the SOPs where such an SOP has been made. Relevantly, s. 120A(3) provides:
(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.
It is of course important, when determining whether the material before the Tribunal discloses a reasonable hypothesis, to bear in mind that a hypothesis is merely a proposition made as a basis for reasoning without the assumption of its truth. Therefore, as has frequently been stated by the Courts, there is no place for fact-finding in the process of determining whether the hypothesis is reasonable. The Tribunal is required only to look at the whole of the material and assess it against the factors which must be present as indicated by the relevant SOP for the causal connection to be made. Whether the facts establish the connection is the last step in this process.
While I am acutely aware of the four step process described in Deledio, I have previously expressed concern in cases where a relevant SOP exists, the need for the Tribunal to first consider all the material before it to determine whether the material points to a hypothesis connecting the injury disease or death with the circumstances of the particular service. Section 120(3) of the VE Act does not refer to all of the material pointing to a hypothesis of connection. This was certainly the common law developed test prior to the introduction of the SOPs. Although s. 120(3) remained unchanged following the introduction of SOPs, determining whether the hypothesis is reasonable required the Commission and, on review, the Tribunal, to apply the new provisions introduced by s. 120A. A hypothesis is reasonable only if there is in force a SOP which upholds the hypothesis (s. 120A(3)).
To ensure that nothing further was intended by the amended legislation, I have examined the Explanatory Memorandum to the Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Bill 1994. Relevantly, the Explanatory Memorandum states, at 7‑8:
New subsection 120A(3) provides that an hypothesis will be reasonable only if it is upheld by a Statement of Principles determined by the Authority under new subsection 196B(2) or a determination of the Commission under new subsection 180A(2). In other words, an hypothesis will be reasonable only if there is a Statement of Principles (or determination) relating to the relevant type of injury, disease or death and the hypothesis contains at least the minimum factors stated to be required to exist and to be related to the person’s service by a Statement of Principles (or determination) for that type of injury, disease or death.
…
The effect of new section 120A is to make Statements of Principles made under subsection 196B(2), and determinations of the Commission under subsection 180A(2) binding on determining authorities at all levels in relation to claims to which the “reasonable hypothesis” standard of proof applies. When review bodies are determining pensions that they “stand in the shoes” of the Commission and are governed by the relevant standard of proof provisions contained in section 120 of the Principal Act. Therefore they also will be required to apply the relevant Statements of Principles and determinations when determining whether the standard of proof has been met.
A reasonable hypothesis is only raised when material, accepted on its face, contains at least the minimum factors stated to be required to exist and which must be related to the person’s service by an SOP for the type of injury, disease or death claimed. Looked at another way, if I were to find that examination of the whole of the material before me pointed to a connection between the disease, injury or death and the service rendered, that would not, by itself, render the hypothesis reasonable. I would then be required to match that material against the factors set out in the relevant SOP.
The first step appears, on its face, to be superfluous where a relevant SOP is in force. That is particularly so because in order to conclude that the material before the Tribunal points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person, I would need to examine medical evidence to that effect. As the Tribunal said in Re Del and Repatriation Commission (1986) 5 AAR 253 at 254 – 255, which was referred to with approval by the Full Court of the Federal Court of Australia in East v Repatriation Commission (1997) 16 FCR 517:
…The addition of the word “reasonable” would however seem to imply that what is required is more than a mere hypothesis. In the opinion of the Board, to be reasonable, a hypothesis must possess some degree of acceptability or credibility – it must not be obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous. For a reasonable hypothesis to be “raised” by the material before the Board, we think it must find some support in that material – that is, the material must point to, and not merely leave open, a hypothesis as a reasonable hypothesis.
As I understand it, the purpose of introducing SOPs was to obviate just such an examination. In fact, s. 196B(2) of the VE Act relevantly provides:
If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a)operational service rendered by veterans; …
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(b)the factors that must as a minimum exist; and
(c)which of those factors must be related to service rendered by the person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.
The expression related to service is explained in s. 196B(14) in the following way (emphasis in original):
A factor causing, or contributing to, and injury, disease or death is related to service rendered by a person if:
(a)it resulted from an occurrence that happened while person was rendering that service; or
(b)it arose out of, or was attributable to, that service; or
…
(d)It was contributed to in a material degree by, or was aggravated by, that service; or
…
(f)In the case of a factor causing, or contributing to, a disease – it would not have occurred:
(i) but for the rendering of that service by the person; or
(ii) but for changes in the person’s environment consequent upon his or her having rendered that service;
…
I have offered the above view of the legislation because Mr Rudge, who appeared on behalf of the Commission, referred to the Full Court of the Federal Court of Australia (Black CJ, Drummond and Kenny JJ) in Repatriation Commission v Hill (2003) 69 ALD 581. The Court said, at 596:
As already noted, the primary judge stated, at [31] of his reasons, that it was sufficient to satisfy ss 120(3) and 120A(3) of the Act that the hypothesis relied on by Mr Hill fitted the SoP in this way [that is, a consideration of all the material by reference to the relevant SOP]. As the authorities show, however, in order to satisfy ss 120(3) and 120A(3) of the Act, there must be more than a hypothesis of connection that is consistent with the relevant SoP. In order to satisfy these provisions, the material must “raise” or “point to” such a hypothesis and this hypothesis, as raised or pointed to by the material must fit the relevant SoP. Although the terms of [31] of his Honour’s reasons may signify error, we doubt that his Honour in truth failed to appreciate this latter requirement.
Although I accept I am bound by decisions of the Federal Court, the statement in Hill to which I have referred above appears to conflate the position as it existed before the introduction of the SOPs with the position after their introduction. Either that, or that statement simply sets out the positions which existed prior to and which existed after the introduction of the SOPs. I say that because subsequently, the Court said, at 597:
Whatever the situation may have been in relation to claims before 1 June 1994, the effect of s. 120A(3) (where there is an SoP under s196B(2)) is that a hypothesis is reasonable only if it is upheld by the SoP. Pursuant to s. 196B(2), the SoP must set out “the factors that must as a minimum exist” and “which of those factors must be related to service”. The result is that, where it applies, the SoP prescribes the essential content of what is a reasonable hypothesis, for s 120(3) purposes, capable of connecting the particular kind of injury, disease or dead with the circumstances of a veteran’s particular service. In order to satisfy ss 120(3) and 120A(3), a hypothesis relied on by veteran to support a pension claim must be supported by material pointing to each element that the SoP makes essential for the hypothesis to be reasonable.
The reference to a claim being supported by material pointing to each element, an expression used prior to the introduction of the SOPs, is not supported by the words of the statute. Understandably, that expression was used to distinguish a mere hypothesis from a reasonable hypothesis in the absence of an SOP. Simply identifying factors which might possibly be connected with the injury, disease or death and the service rendered by the veteran was insufficient to establish that a hypothesis was reasonable.
There is no basis for, nor do the words in the current statute require, the material to point to each element in the SOP. The statutory requirement is simply for the material before the tribunal to raise a reasonable hypothesis and, to do that where there is a relevant SOP in force, the material must uphold the hypothesis. The material will uphold the hypothesis where at least one of the factors set out in the SOP exists and connects a veteran’s death from, in this case, alcoholic cardiomyopathy, with the circumstances of his relevant service. Mrs Humble’s hypothesis will be reasonable if the relevant SOP upholds the hypothesis.
It is, in my opinion, worthwhile to heed the analysis of Gummow J when a member of the Full Federal Court of Australia in Brennan v Comcare (1994) 50 FCR 555, where his Honour said, at 634 - 636:
The judicial technique involved in construing a statutory text is different from that required in applying previous decisions expounding the common law. In the latter class of case, the task is to interpret the legal concepts which find expression in the various language used in the relevant judgements. The frequently repeated caution is against construing the terms of those judgements as if they were the words of a statute. The concern is not with the ascertainment of the meaning and the application of particular words used by previous judges, so much as with gaining an understanding of the concepts to which the expression was sought to be given.
The distinction is usefully expressed in the following passage from Judge Posner’s work in The Problems of Jurisprudence, (1990), p 248:
… Statutory law differs in that the statutory text – the starting point for decision, and in that respect (but only that respect) are responding to judicial opinions in common law decision-making – is in some important sense not to be revised by the judges, not to be put into their own words. They cannot treat the statute as a stab at formulating a concept. They have first to extract the concept from the statute – that is, interpret the statute. (There is a sense in which common law judges “interpret” common law, but it is the sense in which the “interpretation” means “understanding”.)
…
In the end, the function of the court in construing a statute is to give effect to what apparently is “the will of the legislature” as expressed therein. This is so even though as a result of oversight or inadvertence what extrinsic material shows to have been the clear “intention” of the legislature has not been translated into the text of the law: Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518.
Further support may also be found in the statement made by Lord Upjohn in the Privy Council decision in Ogden Industries Pty Ltd v Lucas [1970] AC 113, where he said at 127:
It is quite clear that judicial statements as to construction and intention of an Act must never be allowed to supplant or supersede its proper construction and the courts must beware of falling into the error of treating the law to be that laid down by the judge in construing the Act rather than found in the words of the Act itself.
The existence of a reasonable hypothesis
Mr Humble was diagnosed with alcoholic cardiomyopathy in about 1990. According to Taber’s Cyclopedic Medical Dictionary, 17th edition, alcoholic cardiomyopathy is disease of the heart muscle due to alcohol consumption.
The current SOP determined by the Repatriation Medical Authority (RMA) concerning cardiomyopathy (No. 85 of 2015) commenced on 20 July 2015. That is well after Mrs Humble lodged an application for a pension on the basis of the death of her husband. The SOP in effect at that time was No. 23 of 2007. SOP No. 23 of 2007 was revoked on the commencement of No. 85 of 2015. In those circumstances, I may need to adopt the approach adopted by the Full Court of the Federal Court of Australia in Keely which was subsequently approved in Repatriation Commission v Gorton (2001] 110 FCR 321. The current SOP contains a material difference in the factor dealing with alcohol that must exist before it can be said that a reasonable hypothesis has been raised.
In SOP No. 23 of 2007, factor 6(b) provides:
for males only, drinking at least 250 kilograms of alcohol within any 10 year period before the clinical onset of cardiomyopathy;…
On the other hand, in SOP No. 85 of 2015, factor (2) provides:
for males only, drinking at least 125 kilograms alcohol within a continuous five-year period before the clinical onset of cardiomyopathy;…
To assist in understanding the process of calculating the quantity of alcohol consumed over a period, both SOPs explain that alcohol consumption is measured by using the Australian Standard of 10 grams of alcohol per standard alcoholic drink. The Department of Health website explains what is meant by the expression, standard drink. It also explains that in calculating how many standard drinks are contained in any container containing alcoholic beverage, one multiplies the specific gravity of ethyl alcohol (0.789) by the percentage of alcohol by volume which is printed on the container and the quantity of liquid contained in the container (in litres). An average serve of wine is usually about 150 mL. The example given is one stubbie of full strength beer which contains 375 mL of liquid and is said to be 5% alcohol by volume. The number of standard drinks in that container is calculated as follows:
0.375 X 5 X0 .789 = 1.5 standard drinks
Whether one applies the factors set out in SOP No. 23 of 2007 or No. 85 of 2015, assuming that a person is drinking essentially beer, to achieve the quantity of alcohol required to satisfy those factors, they would need to consume no less than 6.8 standard drinks each and every day over either a 10 year period or a 5 year period depending on the SOP. For the 5 year period, the grams per day calculation is as follows:
125 X 1000 (grams of alcohol) ÷ 1825 (days) = 68.49 g/day
There being 10 grams of alcohol in a standard drink, the resultant is 6.8 standard drinks per day.
Although Mr Rudge submitted that the evidence pointed to Mr Humble drinking at least 125 kg of alcohol as required by SOP No. 85 of 2015, the basis for that submission and calculation is not stated.
Although no submissions were put to me regarding Mr Humble’s level of alcohol consumption and how the calculation may have been arrived at, that does not excuse me from determining whether the evidence supports the submission. The Full Court of the Federal Court of Australia (Merkel, Goldberg and Weinberg JJ) in Grant v Repatriation Commission (1999) 57 ALD 1 said, at 6:
An inquisitorial review conducted by the AAT, as with the Refugee Review Tribunal, is one in which the tribunal was required to determine the substantive issues raised by the material and evidence advanced before it and, in doing so, is obliged not to limit its determination to the “case” articulated by an applicant if the evidence and material which it accepts, orders not reject, raises a case on a basis not articulated by the applicant:…
There can be no question that a determination of how much alcohol a veteran consumed over a period of time, often relating back many decades, might be regarded as being speculative. Nevertheless, in order to determine the question regarding whether a reasonable hypothesis is raised on the material before me, that is precisely what the SOPs require. I accept that accuracy may be seriously degraded. I also accept that evidence given by persons who observed the drinking will, necessarily, be subjective and difficult to evaluate. That does not excuse me from undertaking the exercise.
In this case, given that Mr Humble’s cardiomyopathy diagnosis in 1990 was expressly referred to as alcoholic cardiomyopathy, that is, induced by excessive alcohol consumption, it is tempting to use that diagnosis as objective evidence of the fact that Mr Humble must have consumed alcohol to the extent stated in the SOP factors. The problem with that approach is it is merely an assumption and without more, cannot be a finding made on the evidence. Cardiomyopathy has causes other than excessive alcohol consumption.
In the course of making a claim when he was alive in respect of his cardiomyopathy, Mr Humble completed an alcohol questionnaire. In answer to a question regarding when he began to drink alcohol on a regular basis, Mr Humble and said: 1963. His stated reason for doing so was: A lot of peer pressure whilst at sea to drink while onshore. As to the kind of alcoholic drinks which he consumed at that time, Mr Humble simply answered: Beer. He also said that on average he consumed 10-12 pots on each occasion (presumably on each occasion when he went out drinking with fellow sailors). In answer to the question whether there had been any periods when his alcohol consumption changed significantly, Mr Humble ticked the Yes box and in the details wrote:
Mid-64 “Ship in dry dock” to 1990.
12 to 20 pots per day
3 Bottles Red Wine per day
In the medical report completed by Dr N Jackson which is dated 26 November 1999, Dr Jackson recorded, in a box which bears the heading Approximate amount of alcohol consumed each week, 20 Standard drinks. Just how this figure is derived from the consumption figures I have referred to above is anything but clear. If it is to be understood that Mr Humble was saying that after 1964 and up to 1990, he consumed 12 to 20 pots of beer per day as well as 3 bottles of red wine per day the amount of alcohol consumed would be far in excess of 20 standard drinks per day let alone per week.
I note that in its decision, the Veterans’ Review Board (VRB) referred to Dr Jackson’s medical report regarding alcohol consumption dated 26 November 1999 and said that at that time Mr Humble had been consuming 20 standard drinks per day. That is plainly incorrect. It is clear that Dr Jackson said Mr Humble was consuming 20 standard drinks each week. Twenty standard drinks per seven day period on average are insufficient to satisfy either SOP.
If I were to calculate Mr Humble’s alcohol consumption based on 12 pots of full strength beer three times per week on average, on the basis that a pot of beer is 285 mL and that beer is 4.8% alcohol by volume (Australian Drug Foundation, Drug Info website), the calculation is as follows:
0.285 X 4.8 X 0.789 = 1.079 standard drinks per pot
Thirty-six pots per week results in a consumption of 38.84 standard drinks per week, or 5.5 standard drinks per day.
More problematic is the statement about Mr Humble’s increase in alcohol consumption in about mid-1964. This was in fact raised at the VRB hearing; the transcript indicating that it was put to Mrs Humble that the amount claimed was extensive drinking. Her response was:
Yes, but three bottles of red wine probably would not have been when he was in Sydney. That was probably later. That – that would – that was how he increased his drinking. He would have increased his drinking from his beers to his wine – the red wine because I remember before he was diagnosed with cardiomyopathy, he was drinking bottle of red wine – a lot, and he was told he had to stop drinking alcohol otherwise he wouldn’t have lasted Christmas and that was only a few months away.
Dr Martin van der Linden, a psychiatrist, examined Mr Humble on 30 November 1999, the consultation lasting some two hours. In a report dated 3 December 1999, Dr van der Linden reported Mr Humble telling him that following the collision between HMAS Melbourne and HMAS Voyager in 1964, HMAS Melbourne was out of order for seven months and he lived on Cockatoo Island (dry dock) in Sydney where the ship was placed for repair. Mr Humble is reported as having said the time was filled with boredom and that he felt isolated. There was a great deal of peer pressure and a culture of drinking heavily, which he did with gusto. He was then transferred to Flinders Naval Depot for a further two years where there was also a subculture of excessive drinking. This was prior to his transfer to HMAS Hobart on which he had his first Vietnam tour.
Relevantly, Dr van der Linden reported (emphasis added):
Throughout his naval service he drank heavily whenever not at sea. When based on shore he “wrote himself off” whenever he could, although he could recall no memory losses or withdrawal symptoms. He had numerous “flake outs”. Despite his heavy drinking during his naval service he was still capable of doing his work and believed he was always a good worker. He had no social problems resulting from his drinking.
… During his working life he continued to drink heavily and he believed the greatest stress in his life stem from having to deal with the rather active union movement and the breakup of his marriage which occurred in 1984…
Mr Humble continued to drink heavily till 1990 when his cardiomyopathy was diagnosed. Up to this time he drank three bottles of red per day or 20 “beers” per day. After ceasing drinking he had a number of cravings for some months, but no other problems.…
That report appears to clear up the apparent anomaly in Mr Humble’s alcohol questionnaire. However it does not take the calculation of his alcohol consumption over a period of 5 or 10 years any further. Nevertheless, I accept that the average bottle of red wine contains about 7.5 standard drinks, and 20 pots of full strength beer amounts to some 21.5 standard drinks. That material, as far as the level of his alcohol consumption is concerned, upholds Mr Humble’s hypothesis.
In order to uphold the hypothesis dealing with cardiomyopathy, the level of drinking must be related to the relevant service (in this case Mr Humble’s operational service) rendered by the veteran. Mrs Humble put into evidence extracts from letters Mr Humble wrote to her in 1967, while serving on HMAS Hobart in Vietnamese waters. While those letters do not indicate any precise level of alcohol consumption, they indicate a resort to alcohol in large quantities for the purpose of relieving tension. Mr Humble said that he was spending far too much (money) on alcohol but that was all he had to turn to. He also admitted becoming a bit of a booza lately but explained that the alcohol was free. He also suggested to his wife that she would put him back into line fairly quickly.
The material before me on this application raises a reasonable hypothesis because, in the period 1964 to 1990, it upholds the factor in either SOP dealing with the minimum consumption of alcohol within either a 5 or 10 year period; and which is related to Mr Humble’s operational service.
No sufficient ground for making A determination that death was war-caused
Where the Tribunal finds that a reasonable hypothesis has been raised by an applicant connecting the death of the veteran with the circumstances of the particular service he or she has rendered, the Commission, and in this case the Tribunal, must determine at the death of the veteran was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for determining that the death was war-caused (s. 120(3) VE Act).
Having found that the material before me raises a reasonable hypothesis, I must determine, in accordance with s. 120(1) of the VE Act, that Mr Humble’s death was war‑caused unless I am satisfied beyond reasonable doubt that there are no sufficient grounds for making that determination. I would be so satisfied unless one or more of the factors necessary to support the hypothesis are disproved beyond reasonable doubt; or if the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt. The SOP plays no part in relation to the proof or disproof of the particular facts of the case in question. (Heerey J at first instance in Deledio).
The beyond reasonable doubt standard of proof is that usually reserved for criminal cases. It is significantly higher than the civil standard, which is on the balance of probabilities. As a consequence, because most criminal trials are jury trials, judges giving directions to the jury about the level of satisfaction which they must reach before convicting, have either been very cautious about how that standard is explained, or, where they attempt a more expanded explanation, almost invariably are successfully appealed to a higher court. Hence, it is difficult to provide a succinct explanation of its meaning. A reasonable explanation was provided by Denning J in Miller v Minister of Pensions [1947] 2 All ER 372 where his Honour said, at 373-4:
That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond a reasonable doubt does not mean proof beyond the shadow of the doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against the man as to leave only a remote possibility in his favour, which can be dismissed with the sentence “of course it is possible but not in the least probable” the case is proved beyond reasonable doubt, but nothing short of that will suffice.
Some assistance may also be gained in the Australian context from the High Court of Australia (Barwick CJ, Kitto, Taylor, Menzies and Windeyer JJ) decision in Rejfek v McElroy and Another (1965) 112 CLR 517. This was a civil case but it involved fraudulently untrue representations inducing a contract. The Court said this about the standard of proof, at 521-522:
The difference between the criminal standard of proof of the civil standard of proof is no mere matter of words; it is a matter of critical substance. No matter how great the fact which is to be found in a civil case, the mind only has to be reasonably satisfied and has not with respect to any matter in issue in such proceeding to attain that degree of certainty which is indispensable to the support of a conviction upon criminal charge:…
Mr Rudge contended that Mr Humble’s hypothesis failed to point to a causal connection between his operational service and alcohol consumption; that the evidence did not point to the clinical onset of alcohol use disorder within five years following the experiencing of a category 1A stressor; and the material did not point to a clinical worsening in that period.
Although Mr Rudge has used the expression point to, which I have gone to lengths to explain is not a requirement under the legislation in cases where there is in existence a relevant SOP such as this matter, I have taken his expression to mean that the facts necessary to support Mr Humble’s hypothesis are disproved beyond reasonable doubt. As a matter of caution, I have also treated Mr Rudge’s contentions to include a claim that the truth of a fact inconsistent with the hypothesis has been proved beyond reasonable doubt.
I only need to make some brief statements about the Commission’s contention regarding the experiencing of a category 1A stressor within five years before the clinical onset of alcohol use disorder. Mr Humble was never diagnosed with alcohol use disorder. In his report, Dr Strauss said he believed Mr Humble suffered from an alcohol-related disorder and that it began shortly after his involvement in the Melbourne/Voyager disaster. However Dr Strauss prefaced that statement by saying it was possible on the basis of information available to him, not having had the opportunity to examine Mr Humble prior to his death.
Dr Kaplan in his report said it did not surprise him that Mr Humble would have been affected (presumably in a psychological sense) by the Melbourne/Voyager collision and his operational service. However, he said it was not possible to determine whether those effects constituted a psychiatric disorder or whether he suffered from any ongoing psychiatric disorder apart from his condition related to his use of alcohol. Dr Kaplan thought it was reasonable to conclude that his operational service experiences at least aggravated and probably caused alcohol abuse.
On the other hand, Dr van der Linden, who examined Mr Humble in November 1999, formed the view that Mr Humble did not fulfil or satisfy the factors in the SOPs dealing with alcohol abuse and dependence. That appears to be supported by Dr Jackson’s report completed shortly prior to Mr Humble being examined by Dr van der Linden. The SOP dealing with Alcohol Use Disorder (No. 1 of 2009) defines that expression as a mental disorder which meets the diagnostic criteria derived from DSM-5. It describes it as a problematic pattern of alcohol use leading to clinically significant impairment or distress, as manifested by at least 4/11 events occurring within a 12 month period. Without setting out those events, it is immediately apparent that save for perhaps two of those, the information can only come from the veteran. The only information I had in evidence which was in fact provided by Mr Humble was that which was given to Dr Jackson and Dr van der Linden. With great respect to Drs Strauss and Kaplan, both of whom I accept are experts in their field, they simply did not have available to them the evidence required to make a diagnosis and hence the very tentative statements by both doctors regarding diagnosis. Essentially, they contain a substantial element of speculation.
The stronger evidence is that which was obtained by those doctors who either treated or examined him during his lifetime. It is therefore not possible to make a finding regarding alcohol abuse or dependence.
There are two other matters which arise for closer scrutiny. The first is whether Mr Humble’s alcohol consumption as claimed by him is consistent with any other evidence, particularly objective evidence, of his level of alcohol consumption. The second is whether the evidence is consistent with a causal connection between Mr Humble’s operational service and excessive alcohol consumption, or an increase in that consumption following operational service.
I also need to be mindful of the different periods of time prior to clinical onset of cardiomyopathy referred to in the SOPs. The current SOP refers to a continuous five-year period before the clinical onset of the disease. I do not understand that to mean that the five-year period must be followed immediately, or almost immediately, by the clinical onset. The factor refers to a continuous five-year period before. If it had been intended to be a reference to the period immediately prior to clinical onset, I would have expected the definite article [the] to have been used. The earlier SOP refers to any 10 year period before. While it does not refer to a continuous 10 year period, that seems to be necessarily implied. If I have correctly understood the words used in both SOPs, it appears that it makes no difference as to which SOP is sought to be applied. That is because, as my calculations above indicate, to satisfy the consumption level stated in either SOP, Mr Humble needed to consume a minimum of 6.8 standard drinks on every day of the period in question, whether 5 or 10 years.
As I have already indicated above when assessing whether a reasonable hypothesis exists in this case, the statement made by Mr Humble regarding his increase or change in alcohol consumption between the middle of 1964 and 1990 is not without controversy. Mrs Humble’s evidence regarding his drinking during this period is based, understandably, on imprecise memory coupled with a substantial dose of assumptions. She did recall her husband drinking a lot of red wine before he was diagnosed with cardiomyopathy. On that basis, she drew the conclusion that Mr Humble transitioned from drinking beer to bottles of red wine, but not both at the same time. Her assumption has some support in the report of Dr van der Linden which appears to have been written within days of a consultation which took place in November 1999. Dr van der Linden seems to have understood Mr Humble to have said he was drinking three bottles of red wine per day or 20 beers.
That is a high alcohol consumption level if continued every day for 5 or 10 years. 20 pots or beer alone would result in a consumption of some 21.5 standard drinks in one day. If he was also consuming red wine at the rate stated that figure would rise to over 42 standard drinks per day, which, logically, is highly unlikely. In fact, if that was his level of consumption, it is difficult to understand how Mr Humble was able to function in any manner at all throughout that period. It appears that there is some overstatement or overestimation of the quantity of alcohol which Mr Humble consumed over the relevant 5 or 10 year period.
Yet, as recorded by Dr van der Linden, after leaving the Navy, Mr Humble worked at the Royal Women’s Hospital for two years and was then was the Catering Manager at the Royal Children’s Hospital between 1972 and 1988. After he resigned from that position, he went to Glenormiston, (which I understand is an Agricultural College) as Residential Manager. The reason for his resignation is recorded by Dr van der Linden as: he could no longer cope physically. It does not appear to be alcohol related. Given that the purpose of Dr van der Linden’s examination was in respect of his cardiomyopathy, secondary to alcohol abuse, if alcohol had been the cause, I would have expected Mr Humble to have mentioned it. One year later he was diagnosed with cardiomyopathy and, although not significant for this application, a year later with insulin-dependent diabetes.
Dr Jackson was not called to give evidence nor did he provide a report for the purposes of the hearing. His medical report regarding alcohol consumption is controversial. This appears to have been misunderstood by previous reviewers as being 20 standard drinks per day. That is understandable, given Mr Humble’s statement that he was drinking between 12 and 20 pots per day. However, it does not explain why Dr Jackson said in his report that the approximate amount of alcohol consumed each week by Mr Humble was 20 standard drinks. He may simply have made an error. It should be obvious that this could not, in normal circumstances, be regarded as excessive. It is not clear when he began treating Mr Humble but it appears he certainly did so in the late 1990s. Given that he was Mr Humble’s treating doctor at the time he made his report, the reasonable inference to be drawn from his report, made 10 days after Mr Humble completed the alcohol questionnaire, is that the information came directly from Mr Humble. Being a medical practitioner, I reasonably expect Dr Jackson was aware of how much alcohol is contained in a standard drink.
Furthermore, in the Medical Impairment Assessment form completed by Dr Jackson in respect of Mr Humble’s alcoholic cardiomyopathy, he noted that there had not been any pathological substance abuse in the previous 12 months nor were there any physical stigmata of pathological substance abuse. I understand that to mean that Dr Jackson, on examining Mr Humble and in fact treating him over some period of time (although possibly some years after he ceased drinking alcohol), discovered no other medical conditions which could be attributed to alcohol abuse. In answer to a question which asked to list the features of the condition he had observed or had been reported by others, which included excessive drinking, Dr Jackson wrote: Nil. I accept that Dr Jackson was not aware of any problems observed or reported by others prior to his examination.
Even if the alcohol consumption figure during the stated period was around 20 standard drinks per day, that level of alcohol consumption may appear to be inconsistent with Mr Humble being capable of doing his work and doing it well, or with him having no social problems resulting from his drinking as was reported by Dr van der Linden. Logically, one would have expected that level of drinking to raise concerns by his superiors and others in the workplace. It is also inconsistent with Dr Jackson’s report regarding the features of alcoholic cardiomyopathy he observed or which had been reported to him by others. Mr Humble’s discharge medical examination was conducted on 11 December 1969. That medical report contains no suggestion of having had excessive alcohol intake for the previous five-year period. However, I accept that Mr Humble may not have been aware that he had a drinking problem at that stage. For the sake of completeness, I should also mention that Dr van der Linden concluded, in his general comments, that there was little doubt that Mr Humble’s past alcohol abuse contributed to his cardiomyopathy. Unfortunately, he does not state why he formed that view.
According to Dr van der Linden, Mr Humble told him that during his working life he continued to drink heavily and believed the greatest stress in his life stemmed from having to deal with a rather active union movement and the breakup of his marriage which occurred in 1984. He also apparently told Dr van der Linden that he drank heavily whenever not at sea during his naval service and he wrote himself off whenever he could but he could recall no memory losses or withdrawal symptoms. On ceasing to drink alcohol after being diagnosed with cardiomyopathy, Mr Humble told Dr van der Linden that although he had a number of cravings for some months, he had no other problems.
Mrs Humble’s evidence was that her husband was a light social drinker of alcohol when they met and that he remained a light social drinker until he was involved in the collision between HMAS Melbourne and HMAS Voyager. He was serving on HMAS Melbourne at that time. Mr Humble told Dr van der Linden he was with the Victualling Division and his duties were primarily that of replenishing stores and catering. He also told Dr van der Linden that he believed he handled the Melbourne/Voyager accident well and that it did not affect him. However, he apparently said that following the accident, while HMAS Melbourne was in dry dock undergoing repairs, that period was filled with boredom and he felt isolated. He said there was a great deal of peer pressure and a culture of drinking heavily during that period.
The Melbourne/Voyager collision occurred on 10 February 1964. I had in evidence a number of Reports of Proceedings (ROP) signed off by the Captain of HMAS Melbourne in the months following that collision. In a ROP covering the period 12 – 28 February 1964, the Captain recorded that on 27 February 1964, approval was received to grant three weeks leave to the ship’s company. He also said the first leave parties began leaving the ship that evening although some men were delayed as a result of the enquiry into the accident. Mr Humble’s service record shows his 21 day leave period commencing on 29 March 1964 and ending on 18 April 1964. He re-joined HMAS Melbourne on 19 April 1964 and then had another period of leave between 12 December 1964 and 3 January 1965. Repairs on HMAS Melbourne appear to have been completed by early May 1964 and on 11 May 1964, she set sail for a five-week workup period in the Sydney/Jervis Bay area. Mr Humble joined HMAS Cerberus (a naval base) on 4 January 1965.
In order to put this into perspective, HMAS Melbourne was in dry dock undergoing repairs for three months, and not the seven months claimed by Mr Humble as recorded by Dr van der Linden. Mr Humble had 21 days leave during that period. Therefore, his period of time on board HMAS Melbourne while in dry dock was about nine weeks. Once again, while I had no evidence before me as to the shore leave granted to crew while HMAS Melbourne was in dry dock, logically, it would not have been on a daily basis. It appears, on the above evidence, that Mr Humble significantly overstated the extent of his alcohol consumption during this period of his service.
Mrs Humble’s evidence was that while her husband was in Sydney while HMAS Melbourne was in dry dock, she was living in Melbourne and tended to see him every second weekend. In other words, half of the weekends in the nine week period Mr Humble spent in Sydney while HMAS Melbourne was in dry dock were spent in the company of his wife who was obviously able to observe his alcohol consumption. Her evidence was that at about this time her husband’s consumption of alcohol increased. However her assessment of his alcohol intake, presumably based on observations, was her husband did not drink more than 1 to 2 bottles (26 ounces per bottle) of beer per day. That equates to about 769 ml per bottle. It amounts to about three standard drinks per bottle. Mrs Humble is quite correct in stating that she did not agree with the VRB decision and in particular its conclusion that her husband was consuming 20 standard drinks per day from 1964. According to Mrs Humble, the increase occurred following his operational service on HMAS Hobart.
The evidence before me is clear that while serving on HMAS Hobart, Mr Humble was exposed to enemy fire on a number of occasions, possibly up to ten. There was no dispute about that. There is, however, dispute about the effect that operational service had on Mr Humble. In the letters Mr Humble wrote to his wife while on operational duty, he detailed experiencing shells being fired at the ship and shrapnel being found on the deck. It is also clear from that letter that his action station was down in the mess, not on the bridge as has been stated in some reports. Given that he was a victualler and in effect in charge of procuring and storing food supplies for the ship, that position is logical. In many respects, simply hearing the sounds shells exploding around the ship without being to observe what was going on would probably be more concerning than being in a position to observe.
In one of his letters he also described sitting down at his action station waiting for any reports of damage. He said he could hear the shells exploding around the ship and added that one never knew where they were going to land. His letters do not disclose any obvious signs of distress other than concern about running into further shells exploding close to the ship. Mr Humble expressed some relief when the ship was headed for Subic Bay and he and some of his mates were looking forward to proceeding to the EM’s (Enlisted Men’s) club to get it out of our system. That is plainly a reference to an anticipation of release of tension by resort to alcohol at the club. There is nothing abnormal about that in his circumstances. Also, it appears that the periods of time HMAS Hobart spent on station were quite extensive, up to 30 days at time. While not in evidence, it should be understood that alcohol was not available to sailors in the course of operations. It cannot be controversial that most resorted to excessive alcohol consumption when the opportunity arose. Having spent a short period of time at Subic Bay myself in 1971, I was witness to precisely that behaviour.
While a number of Mr Humble’s letters to his wife refer to drinking alcohol, particularly when shore leave was available and at functions organised for the sailors where the food and alcohol was free, there is no indication in those letters of the extent of drinking at any events. However, I accept that it was substantial if not excessive in most cases. In fact I accept what Mr Humble said was his reason for consuming alcohol on a regular basis, that is peer pressure whilst at sea to drink while on shore. However, what is not clear from the evidence is the basis for that type of sporadic excessive drinking developing into a pattern which could then be described as an alcohol-related disorder. Nevertheless, by the time Mr Humble had completed his operational tour and returned to Australia, there can be little question (supported by his letters to his wife) that he was developing an excessive alcohol consumption habit.
In cross-examination, Mrs Humble was asked when alcohol began affecting her husband’s social functioning. She was unable to give a precise answer but explained that it happened gradually, it was not sudden and that generally speaking, he was a good father to his children. In her witness statement Mrs Humble said that on his return from Vietnam, her husband’s consumption of alcohol increased significantly and that he had become a daily and heavy drinker.
The important evidence given by Mrs Humble relates to the period following Mr Humble’s return to Australia and his discharge from the Navy in January 1970. Mr Humble’s service record indicates that after completing service on HMAS Hobart on 8 January 1968, he had a short one-month period at HMAS Penguin (a shore base on Sydney Harbour) before being posted to HMAS Duchess on 5 February 1968. Following that posting, Mr Humble was posted to another shore base, HMAS Platypus, which is on Neutral Bay in Sydney. On 7 January 1969 he was posted to HMAS Creswell. In her witness statement, Mrs Humble referred to a period of time when they were living in Jervis Bay. HMAS Creswell is the Naval Station at Jervis Bay, about 180 nautical miles south of Sydney. She testified that her husband regularly attended the wet mess (usually referred to as the boozer) following completion of a working day prior to returning home from the base. He would arrive home in what she referred to as a merry state, it being clear he had been consuming alcohol.
On arriving home, he consumed a number of further alcoholic drinks. On occasion, Mr Humble asked his wife to join them at the wet mess, which she did. She noted that on those occasions, he would be drinking with a group, in what she described as shouts with others. The word shout is commonly understood in that context to mean the purchase of a drink for every member in the group, in turn. What I understand Mrs Humble to be implying is that a large number of alcoholic drinks would be consumed as a consequence of being part of a shout. Mrs Humble’s evidence was that she had a number of angry exchanges with her husband over his alcohol consumption at around this period of time.
Following his discharge from the Navy, Mrs Humble said her husband continued to drink alcohol heavily. She was aware that he frequently consumed alcohol at lunchtime although her understanding was that he was able to cope with these duties at work. Nevertheless, she had no doubt that he was drinking excessively. They separated in 1984 and her evidence was that Mr Humble’s excessive alcohol consumption was a significant factor leading to that separation. I have no evidence before me which casts any doubt on that evidence. According to Mrs Humble, they remained friends following the separation, but she could no longer live with him due to the extent of his alcohol consumption.
I also had in evidence the reports of two psychiatrists, Dr Nigel Strauss and Dr Albert L Kaplan, who interviewed Mrs Humble for the purposes of her widow’s pension claim. Dr Strauss interviewed Mrs Humble on 25 June 2014 and Dr Kaplan on 27 July 2015. Mrs Humble gave both psychiatrists a history of her husband’s alcohol consumption which is consistent with the evidence she gave at the hearing. According to Dr Kaplan, Mrs Humble also told him that because of her husband’s excessive drinking, there was little interaction between them and they gradually grew apart. She also told Dr Kaplan that she became increasingly dissatisfied as he appeared to be in denial regarding his alcohol abuse. I will not refer to the opinions given by both psychiatrists regarding what they considered to be Mr Humble’s degree of alcohol consumption because that is a matter for me to determine as best I can from the evidentiary material. It is not a matter for expert opinion. I mean no disrespect to Dr Strauss or Dr Kaplan.
While Mr Humble’s claimed consumption of alcohol seems extraordinarily high in circumstances where was said he continued to function normally in his workplace environment, it is not unusual in cases such as this for veterans, with the assistance of well-meaning supporters, to overestimate the degree of alcohol use. However, I accept that persons who work on a reasonably autonomous basis, as it appears Mr Humble did, are more likely to be able to function at a reasonable level without being particularly noticed. Furthermore, a factor which appears to have been overlooked is that Mr Humble was significantly obese, describing in one of his letters while on operational duty that he weighed in excess of 90 kg. One does not have to examine the literature regarding the effect of alcohol on persons in any great detail before coming across the fact that body-mass index plays a part in that effect. Persons with higher body mass appear to tolerate alcohol more readily than those with a lower body mass. Therefore, I cannot conclude with any degree of certainty that his consumption of alcohol, assuming a minimum of 6.8 standard drinks per day, would have significantly affected his ability to continue to work.
Another important piece of evidence was that from Mrs Humble who pointed out that her husband’s increased drinking was gradual rather than sudden. Mrs Humble’s evidence was that his gradual increase in alcohol consumption resulted in significant fracturing of their relationship leading to separation. In fact, Mr Humble is reported as having told Dr van der Linden just that. On ceasing consumption, Mr Humble told Dr van der Linden that he had some cravings for a number of months but no other problems. Once again, though this tends to lead to an inference that he had some control over his level of drinking, such an inference would be tentative at best. It does not provide any degree of certainty about Mr Humble’s level of drinking at that time.
The evidence discloses Mr Humble progressively increasing his alcohol consumption to the point where it certainly interfered with his relationship with his wife. The letters he wrote to his wife while on operational service clearly disclose binge drinking following breaks in operational patrol work as a means of coping or releasing the tension experienced on operations. The full extent of that drinking may not be quantifiable, but according to Mrs Humble, it was certainly noticeable to her when Mr Humble returned from operational service. It led to their separation in 1984. Furthermore, there is evidence that this increased level of alcohol consumption continued after Mr Humble returned to Australia. In fact, there is evidence that there continued to be a gradual increase after he left the Navy. Mrs Humble’s evidence was that he continued to drink while working, including lunchtime drinking which may have continued into the afternoon. Again, while all of this increase in alcohol consumption may not be capable of quantification, it is, in my opinion, not possible to conclude beyond reasonable doubt that this did not arise, to a significant degree, out of his operational service.
The evidence in this case discloses a clear relationship between Mr Humble’s increased level of alcohol consumption and his operational service. While the extent of that consumption is, understandably, difficult to quantify with any precision, it is probable that it exceeded 6.8 standard drinks per day for either the 5 or 10 year period required by either SOP. In that case, I find that Mr Humble’s death was related to his operational service because his excessive alcohol consumption was attributable to that service. I am not able to conclude beyond reasonable doubt that there is no sufficient ground for determining that Mr Humble’s death was war-caused.
Conclusion
I have found that Mr Humble’s death was war-caused for the reason that his excessive alcohol consumption was related to the operational service Mr Humble had while serving on HMAS Hobart on the gun line in Vietnam. The development of his alcoholic cardiomyopathy was attributable to that service.
I find that the decision made by the VRB on 20 March 2015 refusing to grant a widow’s pension to Mrs Humble was not the correct decision. I set aside that decision and in substitution determine that Mrs Humble is eligible to receive the widow’s pension. As Mrs Humble lodged application for the widow’s pension on 20 January 2014, this is the appropriate date on which this determination should come into effect in accordance with
s. 20 of the VE Act.
I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member [sgd]........................................................................
Administrative Assistant
Dated 2 March 2016
Date of hearing 3 December 2016 Date final submissions received 7 December 2016 Counsel for the Applicant Ms Fiona Spencer Advocate for the Applicant Mr Michael Jorgensen, Williams Winter Advocate for the Respondent Mr Ken Rudge, Department of Veterans' Affair
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