Martin and Repatriation Commission

[2003] AATA 1228

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1228

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No.   N2001/1239

VETERANS' APPEALS DIVISION		)
Re		RAY LESLIE MARTIN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member M D Allen;
Dr J D Campbell, Member

Date5 December 2003

PlaceSydney

Decision The decision under review is affirmed.

(Sgd) M D Allen
  ..............................................

Presiding Member

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No.   N2002/929

GENERAL ADMINISTRATIVE DIVISION		)
Re		RAY LESLIE MARTIN

Applicant

And COMCARE

Respondent

DECISION

Tribunal Senior Member M D Allen;
Dr J D Campbell, Member

Date5 December 2003

PlaceSydney

Decision The decision under review is affirmed.

(Sgd) M D Allen
  ..............................................

Presiding Member

CATCHWORDS

VETARANS' ENTITLEMENTS - whether current illness Post Traumatic Stress Disorder with alcohol dependence or Alcohol Dependence alone - whether diagnostic criteria for causation met - opinions of psychiatrists dependent upon facts found by Tribunal - whether an assault amounts to a severe stressor.

WORKERS' COMPENSATION - diagnosis of illness suffered - factual basis for determining diagnosis - what amounts to a severe traumatic event for causation or contribution to Post Traumatic Stress Disorder.

Veterans’ Entitlements Act 1986 - s 68, s70, ss120(4), s120B

Safety, Rehabilitation and Compensation Act 1988 - s14

Repatriation Commission v Hancock [2003] FCA 711

Benjamin v Repatriation Commission (2001) 70 ALD 622

Lees v Repatriation Commission [2002] FCAFC 398

Repatriation Commission v Cornelius [2002] FCA 750

Brew v Repatriation Commission (1999) 94 FCR 80

Comcare v Mooi (1996) 69 FCR 439

Australian Postal Corporation v Kember [2003] FCA 800

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447

Briginshaw v Briginshaw (1938) 60 CLR 336

Repatriation Commission v Smith (1987) 5 FCR 327

REASONS FOR DECISION

5 December 2003 Senior Member M D Allen
Dr J Campbell, Member        

1.      This matter concerned two applications by the Applicant which were heard together. The first in time matter N2001/1239 was an application to review a decision by the Repatriation Commission dated 1 August 2001 and affirmed by a Veterans' Review Board, regarding the Applicant's claim to have conditions described as "Post Traumatic Stress Disorder, Panic disorder with agoraphobia, Alcohol dependence and social phobia" attributed to his defence service pursuant to section 70 Veterans' Entitlements Act 1986 (“the VEA”).

2.      The second matter N2002/929 sought review of a "reviewable decision" pursuant to section 62 of the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”). That decision affirmed the prior determination that rejected the Applicant's claim for compensation for Post Traumatic Stress Disorder (“PTSD”).

3. So far as relates to the claim against the Repatriation Commission as the Applicant did not have operational service, the standard of proof is that mandated by subsection 120(4) VEA, namely that of to the Tribunal's "reasonable satisfaction". As was pointed out in Repatriation Commission v Smith (1987) 15 FCR 327 the term "reasonable satisfaction" equates to the civil standard of proof.

4. In addition, as the Applicant's claim was lodged post 1 June 1994, the said claim is to be determined by applying section 120B VEA. This section states inter alia that the Tribunal can only be reasonably satisfied that the injury or disease suffered by the Applicant was connected to his Defence Service if the material before the Tribunal, raising the said connection with Defence Service conforms to a so called Statement of Principle (“SOP”) that upholds the contention that the said injury or disease is connected with that service.

5. An additional complication in this matter is that the events that the Applicant claimed gave rise to his psychiatric illness occurred prior to the commencement of his eligible Defence Service. That period commenced on 7 December 1972 (see section 68 VEA). Any connection with Defence Service must therefore be considered as a contribution to or acceleration or aggravation of, the psychiatric illness found to exist.

6.      Repatriation Commission v Hancock [2003] FCA 711 is authority for the proposition that the first task of the Tribunal in a matter in the Veterans' Appeals Division of the Tribunal is to determine the kind of injury or disease suffered by the Applicant. In this matter however, it is not possible to determine the actual illness or illnesses suffered by the Applicant without consideration of the evidence as to causation. As pointed out in Benjamin v Repatriation Commission (2001) 70 ALD 622, the SoP regime has no part to play in determining the question of what kind of disease afflicts the Applicant.

7.      Whereas the Applicant did give evidence and was cross-examined, he was a poor historian. We have no doubt that his inability to give coherent evidence is a direct result of the Applicant's alcohol consumption and that his cognitive facilities have been impaired as a result of that consumption.  

8.      We further accept that the statement which the Applicant gave to the New South Wales Police is more accurate in its detail than evidence he gave to the Tribunal as at the time of giving that statement, namely in March 1996, his cognitive facilities would not have been as impaired as seven years later.   

9.      The Applicant was born on 1 May 1953. His childhood was spent at Sawtell which is a coastal town in New South Wales. He left school at age 17 after completing his leaving certificate. After working in a local store for some three months, he enlisted in the Royal Australian Air Force (“RAAF”) on 26 January 1971, that is to say at the age of 17 years and 9 months.

10.     After recruit training, he was posted to Wagga Wagga for training as a Mess Steward. He was then posted to RAAF station Williamtown as a trainee Steward on 3 June 1971.

11.     In his statement to the police, which statement is dated 15 March 1996 (see T5 in N2002/929), the Applicant says that when he was posted to Williamtown, the supervisor of the Sergeants' Mess who held the rank of Flight Sergeant (ie was a senior non-commissioned officer (“NCO”)) took a close interest in him and to an extent "mothered" him. 

12.     The Applicant further alleged that on a day on or about the second week he was at Williamtown, the said Mess Supervisor asked if he would like to see the Maitland area. He said yes and a couple of days later, after finishing their shift, the Mess Supervisor and he, at or around 3pm, drove out to Maitland which is a town in the Hunter Valley, west of Newcastle.

13.     It is alleged by the Applicant that after taking him to a hotel and plying him with alcohol, the Mess Supervisor suggested that it was too late to return to base and they should get a room for the night.

14.     The Applicant who was by this time affected by alcohol agreed and they obtained a motel room. That room only had a double bed so both men stripped down to their underpants and got into the bed. The Applicant then alleges that during the night, the Mess Supervisor engaged in non-consensual sexual activity with him.

15.     Both men returned to the unit the next day and the Mess Supervisor arranged for the Applicant to have the day off duty. Within a week, the Applicant had been transferred away from the Sergeants' Mess to the Officers' Mess.

16.     It was shortly after the events related above that the Applicant says he began to drink alcohol in excess as it helped him get over what had happened to him.

17.     The Applicant was asked why he did not report the alleged assault at the time. He said that he was too scared to. He was at that time an aircraftsman recruit and the Mess Supervisor a Flight Sergeant. As he pointed out, "they are gods".. We do accept that if the sexual activity was non-consensual, the Applicant, given his youth and status compared to that of the alleged offender would have been constrained from making a complaint.

18.     In August 1971, the Applicant was transferred to Learmonth in Western Australia as a Steward in the Officers' Mess. Whilst there, another senior NCO was posted in who had mannerisms similar to those of the Mess Supervisor at Williamtown. As a result, the Applicant went absent without leave and travelled from Learmonth to Victoria. There he was arrested and subjected to disciplinary proceedings.

19.     After a period of detention in service facilities, the Applicant was returned to Learmonth. He then found out that a Corporal Steward had been killed as a result of a motor vehicle accident. That Corporal had had to undertake extra duties as a result of the Applicant's absence and the Applicant stated that other airmen had shunned him as they blamed him for the death of the Corporal, alleging that the motor vehicle accident occurred as a result of the Corporal's being tired from performing the extra duties.

20.     The Applicant married in 1974. Whilst posted to RAAF depot at Toowoomba in 1977, two airmen were caught by a sergeant indulging in homosexual activity. This upset the Applicant greatly as it revived memories of the assault upon him and he took solace in alcohol.

21.     The Applicant continued to serve in the RAAF until September 1992, when he was discharged at his own request with the rank of Sergeant. He and his wife then started a catering business at Coffs Harbour but that business ceased in 1997 as the Applicant had become incapable of functioning in the business because of his indulgence in alcohol. Currently, he spends most of his time in a shed in the backyard of the family home drinking home-distilled spirits.

22.     According to the Applicant, he commenced to drink heavily shortly after being sexually assaulted in 1971 and continued to drink heavily throughout his service. He managed to perform his duties even though he overindulged in alcohol and part of the reason for this was that when possible, he worked as a Bar Steward. As he said to Dr Delaforce, Psychiatrist, "I suppose they thought a drunk makes a good barman".

23.     The Applicant's wife also gave evidence and has been interviewed by Drs Horden and Lewin, Psychiatrists. Mrs Martin stated that when first married, she did not recognise that her husband had a drinking problem but that it became obvious in 1977 whilst posted at Toowoomba. More importantly, she told Dr Horden that her husband had began to drink heavily whilst posted at Toowoomba and after the two airmen had been discovered indulging in homosexual activity. She stated that "this had upset him greatly".

24.     Mrs Martin also told Dr Horden that whilst in the RAAF, she had tried to get  assistance for her husband because of his drinking but "they didn't want to know".

25.     There is a distinct conflict in the medical opinions tendered in this matter. Drs Delaforce and Horden for the Applicant opined that he has a PTSD with alcohol dependence as a result thereof, whereas Dr Lewin for the Respondents is of the opinion that the Applicant suffers from alcohol dependence only.

26.     In addition to PTSD and alcohol dependence, Dr Delaforce considers that the Applicant suffers from panic disorder with agoraphobia and social phobia. Dr Horden considers that the diagnosis is PTSD with alcohol dependence. In the two Statements of Facts and Contentions outlining the Applicant's case (Exhibit A1 re: Repatriation Commission, Exhibit A2 re: Comcare), the disease suffered is claimed to be PTSD with alcohol dependence and Dr Horden only was called in support of the Applicant's case.

27.     We consider therefore that the real question in this matter is whether the illness currently suffered by the Applicant is PTSD with alcohol dependence or alcohol dependence alone. We note that if PTSD is accepted, then conditions such as social phobia, panic disorder and agoraphobia will be assessed as conditions caused by the PTSD.

28.     Essential to determining the nature of the illness is an examination of the events in 1971. The crucial test of causation for a PTSD is whether the Applicant suffered an extreme traumatic stressor involving threat to his physical integrity. (See the Diagnostic and Statistical Manual Volume IV (“DSM-IV”) at page 425. Or as is described in the applicable SoP, a "severe stressor").

29.     To be satisfied that in 1971, the Applicant suffered a stressor severe enough to cause or contribute to a PTSD, the Tribunal must be satisfied that the Applicant was the victim of non-consensual sexual acts by the Mess Supervisor.

30.     Confidential exhibit, being Exhibit A5, is an extract from the service records of the Mess Supervisor named by the Applicant. These records show that the Mess Supervisor  was charged by New South Wales State Police in 1970 with the offence of  "Commit an act of indecency with a male person" contrary to section 81(A) of the Crimes Act 1900 (NSW).

31.     Although committed for trial at Newcastle Quarter Sessions, it appears that no indictment was filed. In 1976, the person named by the Applicant was removed from the RAAF as a result of his homosexual activities.

32.     Given the material in Exhibit A5, we find that this material corroborates the evidence of the Applicant that homosexual activity took place between him and the Mess Supervisor.

33.     We are not reasonably satisfied however that the activity was entirely non-consensual.

34.     The Applicant in his statement to the police said that at the time of the alleged assault, he did not drink alcohol. In cross-examination, he recollected that he had drunk beer with his parents at Christmas before entering the Air Force.

35.     Notwithstanding the Applicant's youth at the time, the fact remains that he was drinking with the Mess Supervisor, agreed to share a motel room with him and then shared a double bed with him. More telling is the opinion by Dr Lewin that if the Applicant's statement is accepted, it is unlikely he would have maintained an erection or come to ejaculation if both drunk and terrified.

36.     The question of the Applicant's ability to maintain an erection and to ejaculate was put to Dr Horden in cross-examination and he agreed that the ability to retain an erection and to ejaculate would more than likely be impossible if the Applicant was terrified, although in his view this was not impossible.

37.     As in cases of heterosexual rape, a clear distinction must be made between seduction and non-consensual activity. In Holman v R [1970] WAR 2 at page 6, Jackson CJ said in the case of a heterosexual assault:

"A woman's consent to intercourse may be hesitant, reluctant, grudging or tearful, but if she consciously permits it (providing her permission is not obtained by force, threats, fear or fraud) it is not rape".

Similar principles apply here. There is no suggestion that the Applicant was so intoxicated that he was incapable of giving consent to any activity and on his own statement, he took part in the activity. That it went further than he intended is also a different question as to whether physically or verbally or by other indicia, he withdrew his consent. Self disgust and loathing after the event is not non-consent at the time.

38.     Even if the events were non-consensual, they took place when off duty, away from the place of employment and no authority was cited to us that made an employer liable for a criminal offence committed by an employee upon a co-employee in these circumstances.

39.     As we are not reasonably satisfied that the Applicant was the victim of a non-consensual sexual assault, we are not satisfied that he suffered an extreme traumatic stressor in 1971.

40.     Even if the sexual encounter in 1971 was non-consensual, it is not clear, given the diagnostic features of PTSD at page 425 of DSM-IV that that event would amount to an extreme traumatic stressor.

41.     DSM-IV gives the following diagnostic criteria for a PTSD :

"The essential feature of Post Traumatic Stress Disorder is the development of characteristic symptoms following exposure to an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury, or other threat to one’s physical integrity; …

Traumatic events that are experienced directly include, but are not limited to, military combat, violent personal assault (sexual assault, physical attack, robbery, mugging),…"

In discussing the traumatic event necessary, DSM-IV states at page 427:

"In Post Traumatic Stress Disorder, the stressor must be of an extreme (ie, life- threatening) nature".

42.     Thus although non-consensual sexual activity may amount to an extreme traumatic stressor, the reference in the DSM-IV is to sexual assault as opposed to consensual sexual activity which without violence goes beyond what one of the parties had wished or intended. As pointed out in DSM-IV at page 427, in PTSD the stressor must be of an extreme (life-threatening) nature.

43.     There was nothing about the activity that occurred between the Applicant and the Mess Supervisor that amounted to a life threatening activity.

44.     When considering the other events pointed to by the Applicant as being contributing factors to or aggravations or accelerations of his PTSD, we can only say that none of them objectively amount to extreme traumatic events.

45.     The first instance referred to was that at Learmonth when a Mess Supervisor had characteristics similar to the Mess Supervisor at Williamtown. There is no evidence that this person ever engaged in any inappropriate behaviour towards the Applicant. His presence may have brought back unpleasant memories and even a resumption of feelings of self-disgust, but there is no evidence to suggest an event or events amounting to an extreme traumatic stressor.

46.     Upon his return to Learmonth after detention, the Applicant was made aware of the death of a fellow airman in a motor vehicle accident and it was suggested that he was to blame as the accident had been caused by tiredness resulting from having to work extra shifts to cover for the Applicant's absence. Accepting for the purpose of argument that there was some resentment towards the Applicant, we still are not satisfied that the events amounted to an extreme traumatic stressor. There is no evidence that the deceased was in any way a close friend of the Applicant nor was there any association between them other than being fellow stewards on the same base.

47.     Neither was there any evidence that any alledged resentment against the Applicant manifested itself in such a way as to make him fear for his own personal safety.

48.     The events in Toowoomba in 1977 may have brought back unpleasant memories to the Applicant but it is difficult to see why it should be causative of symptoms of PTSD. He did not witness the event and merely hearing about it cannot amount to an extreme traumatic event.

49.     We are therefore more convinced by Dr Lewin's opinion that the Applicant does not suffer from a PTSD as opposed to alcohol dependence.

50.     In his report of 17 December 2002 (Exhibit C2), Dr Lewin refers to the Applicant's history. Despite two instances of being absent without leave, the Applicant was promoted to the rank of Sergeant. The Tribunal also notes that there is nothing in the material before it to suggest that the Applicant was, because of his alcohol consumption or otherwise, regarded as a disciplinary or administrative liability to the Air Force. He was, as stated above, promoted to the rank of Sergeant and discharged after 20 years of service, being the time at which he became entitled to a Defence Force Retirement and Death Benefits Act pension.

51.     Dr Lewin concluded his report by opining that the only diagnosis of significance at present is the diagnosis of alcoholism or Alcoholic Dependence Syndrome, which arises from a multiplicity of causes but was not related to his service in the RAAF.

52.     Having heard both Drs Lewin and Horden give evidence and be cross-examined, we were more persuaded by Dr Lewin's evidence. Dr Horden, on the other hand, demonstrated a rigidity of opinion inconsistent with an expert's duties to the Tribunal and in cross-examination, totally refused to consider how his opinion would be affected if the sexual activity in 1971 were found to be consensual.

53.     Instrument No.77 of 1998 is the SoP that was in force at the time the Repatriation Commission made its original decision in this matter and at the time of the Tribunal's hearing. The factors that the SoP requires to exist before alcohol dependence can be said to be connected with service are:

“(a)      suffering from a psychiatric disorder at the time of the clinical
onset of alcohol dependence or alcohol abuse; or

(b)       experiencing a severe stressor within the one year immediately
before the clinical onset of alcohol dependence or alcohol abuse; or
(c)       suffering from a psychiatric disorder at the time of the clinical
worsening of alcohol dependence or alcohol abuse; or

(d)      experiencing a severe stressor within the one year immediately
before the clinical worsening of alcohol dependence or alcohol
abuse; or

(e)      inability to obtain appropriate clinical management for alcohol
dependence or alcohol abuse.”

54.     Paragraph 6 of the SoP then goes on to state that “5(c) to 5(e) above apply only to material contribution to or aggravation of, alcohol dependence or alcohol abuse”.

55.     So far as factors (a) and (c) are concerned, there is no evidence that the Applicant ever suffered from a psychiatric disorder. Shame, disgust and remorse after an activity are not psychiatric illnesses. As pointed out by Drummond J in Comcare v Mooi (1996) 69 FCR 439 at 444, a distinction must be drawn between what is within a normal range of behaviour in the circumstances and a condition that is outside the boundaries of normal mental functioning and thus clinically significant.

56.     Factors (b) and (d) involve the concept of clinical onset or of clinical worsening. In Lees v Repatriation Commission [2002] FCAFC 398, the court approved the formulation adopted by Branson J in Repatriation Commission v Cornelius [2002] FCA 750, namely that the clinical onset of a disease occurs either when the person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time or when a finding was made on investigation which is indicative to a doctor of the disease being present.

57.     In this matter, it is difficult to ascertain the exact date of the clinical onset of the Applicant's alcohol dependence. We have referred earlier to his apparent uneventful service in the RAAF after going absent without leave whilst at Learmonth. Dr Lewin discusses but does not commit to any date of onset. At page 19 of his report, he states:

"…In my opinion, the only diagnosis of significance at the current time is the diagnosis of alcoholism or Alcohol Dependence Syndrome. That condition arises out of a multiplicity of causes. Based upon the pattern of functioning during the 1970's one would presume that there were occasional episodes of heavy drinking. His pattern of drinking was described as one falling within the normally accepted pattern. There were no indicators of addiction to alcohol at that stage of his life. Consistent with this I also note that physiological addiction evolves gradually and that this generally requires at least ten years of consistent heavy drinking..."

58.     Dr Lewin in his oral evidence stated that he did not have clear evidence of the Applicant having a significant drinking problem in the 1970's. Mrs Martin on the other hand, says that she did not regard the Applicant as drinking too much until his service in Toowoomba in 1977. Then she said "he was consistently drunk all the time".

59.     The only event the Applicant can point to as a severe stressor in 1977 is the event when two other airmen known to him were found in the act of homosexual activity. He himself only heard about the event and did not witness it. This cannot amount to a severe stressor as that term is defined in Instrument No.77 of 1998 which defines "Experiencing a severe stressor" in the following terms namely:

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

In the setting of service in the Defence Forces, or other service where the
Veterans’ Entitlements Act applies, events that qualify as severe stressors
include:

(i)        threat of serious injury or death; or

(ii)       engagement with the enemy; or

(iii)      witnessing casualties or participation in or observation of casualty

clearance, atrocities or abusive violence;”

60.     Factor (e) in the SoP refers to the inability to obtain appropriate clinical management for alcohol dependence. We accept Mrs Martin's evidence that she sought some treatment for her husband from RAAF authorities but "they did not want to know".

61.     The inability to obtain appropriate clinical management for an injury or disease was discussed by the Federal Court in Brew v Repatriation Commission (1999) 94 FCR 80. The inability must refer to a practical inability and in this matter there is no evidence that the Applicant presented himself for treatment for a habit of, or a tendency to, overindulge in alcohol and was somehow refused or prevented from obtaining the appropriate clinical management.

62.     In this regard, we also refer to the details of the Applicant's service and there is no material before us to suggest that at any time the Applicant was the subject of disciplinary or administrative action because of over indulgence in alcohol. On 10 May 1983, at a medical examination, the Applicant was recorded as drinking “½ doz 7 oz beers a day, ie 60 grams alcohol a day, whereas in May 1988, he was recorded as drinking “45 gms of alcohol a day five days a week”, which as Dr Lewin pointed out was within World Health Organisation Guidelines as being at an acceptable level.

63.     Subsequent to the hearing in this matter, the Applicant’s solicitors inspected documents produced by the Repatriation Commission, being the Applicant’s Service Records (Exhibit R3) which contained the records of medical examination referred to above. A report by a Dr Miller, Consultant Physician, was then tendered at a Directions Hearing held on 13 November 2003 (Exhibit A6).

64.     In his report, Dr Miller refers to medical examination records of 10 May 1983 and May 1988 and notes slightly elevated blood pressure and elevated serum uric acid. He then opines, “In view of the elevated findings in Mr Martin’s case in 1983 and 1988, I consider that the elevated pathology and blood pressure are consistent with the presence of ingestion of 6 to 8 standard drinks of alcohol daily when these findings were recorded.”

65.     Even if Dr Miller’s opinion is accepted, it does not take the Applicant’s case any further. He may have been drinking more then he was prepared to admit to service medical authorities but there is no other evidence to say that he was over indulging in alcohol to such an extent as to create either a disciplinary, administrative or obvious medical problem.

66.     Given the material before us, we are reasonably satisfied that there is nothing in that material that meets the factors set out in paragraph 5 of the SoP relating to alcohol abuse or alcohol dependence. This being so, the SoP does not uphold the contention that the Applicant's disease of alcohol dependence is connected with his Defence Service and thus the Tribunal cannot be reasonably satisfied that the said disease is attributable to the Applicant's Defence Service.

67. Similar considerations apply regarding the Applicant's claim pursuant to the SRC Act.

68.     We cannot find on the material before us and on the balance of probabilities that the events of 1971 were non-consensual. Later events in the Applicant's service relied upon both by Drs Delaforce and Horden as contributing factors to his PTSD  or alcohol dependence have as their basis the acceptance of a sexual assault in 1971. As we are not prepared to find that there was a sexual assault in 1971, the basis of their opinion is destroyed: cf the remarks of Finn J in Australian Postal Corporation v Kember [2003] FCA 800 at paragraph 20 and the discussion by the majority of the High Court in Whisprun Pty Ltd v Dixon [2003] HCA 48 at paragraphs 47 and 60.

69.     To sum up, the Tribunal makes the following findings of fact: -

(i)        We are not reasonably satisfied that the sexual encounter between the Applicant and the Mess Supervisor in 1971 was non-consensual.

(ii)      That a senior NCO at Learmonth in 1973 had "mannerisms" resembling those of the Mess Supervisor at Williamtown did not amount to a severe stressor or an extreme traumatic stressor sufficient to cause or contribute to or aggravate a PTSD.

(iii)      That the Applicant, upon returning to Learmonth RAAF base after a period of absence without leave learnt a fellow airman had been killed in a motor vehicle accident allegedly caused by tiredness resulting from that airman having to work additional shifts because of the Applicant's absence, did not amount to a severe stressor or an extreme traumatic stressor sufficient to cause, contribute to, or aggravate a PTSD.

(iv)      Hearing that two fellow airmen had been caught flagrante delicto in homosexual activity whilst at Toowoomba RAAF base did not amount to a severe stressor or an extreme traumatic stressor.

(v)      The Applicant's history of alcohol use is inconsistent. His wife speaks of him abusing alcohol from 1977 onwards, yet in 1983 and 1988, service medical records note an intake of alcohol regarded as within safe limits of drinking.

(vi)      The Applicant had a 21-year career in the RAAF retiring with the rank of Sergeant. At no time was he disciplined or warned administratively regarding his use of alcohol. 

70.     Given the above, we find that the only logical explanation for the Applicant's current disease of alcohol dependence is that suggested by Dr Lewin, namely:

"I don’t think it's safe to attribute alcohol abuse to any specific event, particularly if the event is 30 years ago. People abuse alcohol for a long time before they develop physiological dependence, and I think it unsafe to attribute a life-long drinking problem to a single event … or events."

71.     During the evidence of Drs Lewin and Horden, the fact that the Applicant was a Bar Steward for much of his RAAF service and had a ready access to alcohol was raised as a contributing cause of his alcohol dependence. As pointed out by Dr Horden:

"I think  it's well-known that anybody who promotes or sells or retails or manufactures alcohol (has) a higher instance of alcoholism than other people in dissimilar occupations."

It was however no part of the Applicant's case that a ready access to alcohol of itself caused or contributed to his current dependence.

72.     Arguments were also addressed to the Tribunal by the Respondent regarding the requirements under the Commonwealth Employees Compensation Act 1930 and the Compensation (Commonwealth Government Employees) Act 1971 to notify the employer of the alleged injury or disease as soon as possible: see section 16 of the 1930 Act and sections 53 and 54 of the 1971 Act. As we are not satisfied on the civil standard of proof, bearing in mind the seriousness of the question to be decided: cf Briginshaw v Briginshaw (1938) 60 CLR 336, especially at 361, 362 per Dixon J that the activity complained of was non-consensual, we do not find it necessary to decide these questions.

73.     We note however that the Applicant did state quite unequivocally in his evidence that he was unaware of his entitlement to claim Workers’ Compensation until informed by a Veterans' Review Board in August 2001.

74.     For the reasons outlined above, the decisions under review are affirmed.

I certify that the 74 preceding paragraphs are a true copy of the reasons for the decision herein of:

M D Allen, Senior Member and

Dr  J Campbell, Member

Signed:         (K. Wong)            .......................................................................................
  Associate

Date/s of Hearing  8 - 9 September and 13 November 2003
Date of Decision  5 December 2003
Counsel for the Applicant              Mr C Colborne 
Solicitor for the Applicant               Mr B Winship, Rockliffs Solicitors 
Counsel for the Respondent          Mr G Johnston 

Solicitor for the Respondent  Ms S Johnson, Sparke Helmore Solicitors