Mason and Comcare - [2000] AATA 138

DECISION AND REASONS FOR DECISION [2000] AATA 138

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/287

GENERAL ADMINISTRATIVE DIVISION )

Re JOHN MASON
Applicant

And COMCARE
Respondent

DECISION

Tribunal Dr J D Campbell

Date22 February 2000
PlaceSydney

Decision The decision under review is affirmed, albeit that the findings leading to the affirmation are varied.

(Sgd) J D Campbell
  ..............................................
  Member
CATCHWORDS
Compensation – alcoholic liver disease – alcohol dependence – chronic pancreatitis – stress – trauma – contribution in a material degree by employment – claim by a dependant – partial dependence
Safety, Rehabilitation and Compensation Act 1988, sections 4, 17, 55
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Re Lambroglou and Commonwealth (1989) 19 ALD 33

REASONS FOR DECISION

Dr J D Campbell, Member

Mr J. Mason ("the Applicant") in this matter seeks a review of the decision dated 30 December 1998, made by a delegate of Comcare on behalf of the Department of Defence ("the Respondent"). This decision affirmed the earlier decision, dated 8 October 1998 (T22), made by a delegate of the Respondent to disallow the Applicant's claim for compensation on behalf of his late mother's estate, in respect of the death of his brother, Mr A. Mason.
A hearing was held before the Tribunal on 5 November 1999, with the Applicant being self-represented and the Respondent represented by Ms L. Rieper, a solicitor from Barker Gosling.
The following material was placed into evidence:
Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 T1-T24, pp1-56 T documents
Bundle of documents dated 10/6/1999   Exhibit A1
Bundle of documents received 14/10/1999      Exhibit A2
Medical Records of Applicant as compiled by Dr Shean       Exhibit R1

The Applicant provided oral evidence to the Tribunal.
ISSUES
The particular issues before the Tribunal are:
i)Whether Mr A. Mason (the deceased brother) had suffered an injury as a result of Naval Service, which led to his death.
ii)Whether Mr A. Mason's mother was dependent for economic support on him at the time of his death.

STANDARD OF PROOF

The applicable standard of proof in both issues is the balance of probabilities.
LEGISLATION
The relevant legislation in this matter is the Safety, Rehabilitation and Compensation Act 1988 (hereinafter referred to as "the Act") and in particular sections 4, 17 and 55.
BACKGROUND
The Applicant lodged a claim for compensation on 23 June 1998 relating to the death of his brother, Allan Mason (T15, 16). The claim for compensation was made on behalf of his late mother's estate, the mother, Mrs Alice Mason, having died in December 1997. In the claim the Applicant contended that his brother's death was attributed to injuries for which the Commonwealth had accepted liability on 14 November 1973, and further that his mother was partly dependent on his brother up to the time of his death on 21 February 1993.
Mr Allan Mason ("the Applicant's deceased brother) joined the Navy in 1960 and left in 1969, having served on HMAS Melbourne at the time of the collision with the USS Evans. His service records indicate an episode of psychotic behaviour in Singapore in 1964 for which he was repatriated to Australia and further assessed. In mid 1972 he applied to re-enter the Navy and upon further medical assessment by Dr M. Owen, was determined medically fit for re-engagement (Exhibit A1).
In his witnessed medical statement of 7 September 1973 relating to his discharge from the Navy (Exhibit A1), the Applicant's deceased brother detailed his disabilities suffered during service as being:
i)Psychiatric disturbance – August 1964
ii)Acute Haemorrhagic Pancreatitis – November 1972
iii)Concussion – October 1972.
Further in his medical statement the Applicant's deceased brother attributed his pancreatic conditions to mumps and gastroenteritis, and stated further that he had submitted compensation claims for both the concussion and the haemorrhagic pancreatitis.
Mr Allan Mason was subject to a Navy Medical Board on 14 September 1973 (Exhibit A2). The Medical Board found that the Applicant's deceased brother had a disability of post haemorrhagic pancreatitis; that this disability was considered to be constitutional and was not due to Navy Service, but had been aggravated by Naval Service. The Medical Board recommended his discharge on medical invalidity grounds, with a degree of incapacity of 30 per cent. This decision was affirmed by the Navy Medical Director General on 26 September 1973. Further it is noted that an application had been received by the Navy Office under the CEC Act and a file commenced (125-22-256) (Exhibit A2).
EVIDENCE OF MR JOHN MASON
The Applicant told the Tribunal that he was living at home with his parents when his brother joined the Navy in 1960 and that he was close to his late brother in a family of nine children. The Applicant informed the Tribunal that despite his marriage in 1962, he saw his late brother at least 12 times a year on weekend shooting and fishing activities; that his late brother was normal up to the collision with USS Evans in 1969; that his late brother relived the collision a few times and thereafter did not mention it; that his late brother left the Navy in 1969 and reapplied to join in Easter 1972; that his late brother hardly drank before he joined the Navy in 1960 at the age of 17, but became a heavy drinker after the collision.
The Applicant further related to the Tribunal that after his late brother left the Navy he returned home to live with his parents, until his father died a few years later, after which he lived with his mother in the family home. The Applicant further informed the Tribunal that the late brother drove around Australia after discharge from the Navy in 1973 and that he never worked from this time up to his death in 1993; that his late brother had a fear of addiction to drugs because of the pain and used alcohol as a substitute to drugs for pain relief.
The Applicant further told the Tribunal that his late brother lived in his mother's home up to his final admission to hospital and his death in 1993, drinking heavily and with admission to hospital for various ailments, including diabetes, burns, cataracts, alcoholism and liver disease. Further the Applicant stated that his late brother had been providing monthly allotments of money to his mother from the time he joined the Navy, and at the time of his death this amounted to $100.00 a month; that his late brother and his mother were mutual carers for each other, with the past money payments being much more financially significant when converted to a today's dollar amount.
MEDICAL EVIDENCE
From the Navy Medical records, it is clear that the late Allan Mason had an episode of acute haemorrhagic pancreatitis in November 1972, necessitating transfer to the Royal North Shore Hospital on 25 November 1972 with surgical intervention occurring on 26 November 1972 and again on 29 December 1972. It was noted that on 12 January 1973 he was mildly diabetic and on 22 February 1973 he was transferred back to Balmoral Naval Hospital for rehabilitation.
The Tribunal in examining the contemporaneous medical records notes that there is no medical discussion or comment as to the cause or causes of the acute haemorrhagic pancreatitis. The Tribunal notes that a claim for compensation was made and accepted for concussion and multiple bruising when the Applicant's deceased brother fell over a chair at the top of some stairs on 30 October 1972.
The medical history of the Applicant's deceased brother after his discharge from the Navy (Exhibit R1) is essentially one of heavy alcohol intake and alcohol dependence commencing with admission to the Mater Hospital in Newcastle in 1977 with gastro intestinal haemorrhage and where a diagnosis of diabetes was made. By August 1980 the Applicant's deceased brother was stated to be suffering from diabetes mellitus secondary to alcoholic pancreatitis, together with gross diabetic myopathy, autonomic neuropathy, peripheral neuropathy, alcoholic liver disease and beri beri, as well as alcoholic brain damage.
Over the next 13 years, the Applicant's deceased brother was treated for a variety of alcohol and diabetic related conditions including pancreatitis, liver disease, burns, cataracts, diabetic coma and cerebellar dysfunction. His final admission to John Hunter Hospital was on 7 January 1993, and death on 21 February 1993 was certified as being due to acute liver failure and acute renal failure subsequent to prolonged alcohol abuse and alcoholic liver disease.
DR SHEAN
Dr Shean was the Applicant's deceased brother's attending general practitioner for the period 1975-1993. In a report dated 20 January 1998, Dr Shean stated:
"Mr Allan Mason's problems of a medical nature started in 1972 when he suffered from an episode of what was thought to be alcohol induced haemorrhagic pancreatitis. It is interesting to note though that Mr Mason at that time was noted not to be a heavy drinker by medical staff and by his own statements. He, however, with the nature of the pain and discomfort that he suffered, became a heavy drinker.
Mr Mason felt that his alcohol problems were related to stresses and strains that had occured [sic] during the course of his service in the Australian Navy…" (T13)
In a further report dated 12 August 1998, Dr Shean concluded:
"… I reiterate that Mr Allan Mason's cause of death to be acute liver failure, alcoholic liver disease and alcohol abuse.
I believe these to be the direct result of his employment in the Australian Navy. I believe his appointment in the Australian Navy resulted in a chain of events which led to his death." (T19)

DR G. RADVAN

Dr G. Radvan, a consultant physician, in a report dated 5 December 1997, detailed the sequence of medical events that occurred to the Applicant's late brother at the John Hunter Hospital during the period 7 January 1993 to 12 February 1993, and concluded by stating:
"I understand there is some query about concussion and multiple bruising injuries sustained by Allan Amos Mason in 1973 causing subsequent pancreatitis and subsequent diabetes. I did not care for him at this time and could not comment on those injuries causing pancreatitis and subsequent diabetes. However we were aware that he was heavy alcohol user and indeed alcohol can cause severe pancreatitis resulting in diabetes as well." (T10, p32)

OTHER EVIDENCE

In a statutory declaration dated 27 January 1998 the Applicant stated that his late brother had money transferred to his mother on each pay day after commencing with the Navy in 1960; that after his medical discharge he contributed to the financial affairs of the family home at which he resided, by way of paying for telephone bills and rates. Further, the Applicant stated that after his father's death, his late brother assisted his mother in driving her to shop and for medical attention, which increased over the next fourteen years (T14).
In a further letter dated 14 August 1998 the Applicant disputed the statement made by Dr Radvan in his report of 5 December 1997 that "his mother was the usual carer", by stating that Dr Radvan was not the attending general practitioner (T20, p47). Further, the Applicant in the same letter highlighted the respective level of income for his mother ($8,008.20) and his late brother ($19,638.00) for the financial year 1991/1992 (T20, p47).
In a further letter dated 10 November 1998, the Applicant again detailed the following financial contributions that his late brother had made to his mother.
·     $80.00 per fortnight for the 13 years he was in the Navy (1960-1973) (T20, p52)
·     $80.00 per month from 1973 until 1986 (T20, p53)
·     $100.00 per month from 1986 until 1993 (time of death)(T20, p53)

SUBMISSIONS

The Applicant submitted that his late brother's death was attributable to his Navy Service in that his haemorrhagic pancreatitis occasioned during his naval service in 1972, arose some 15 days after an episode of concussion and multiple bruising. This episode of injury arose as a consequence of the late Applicant falling over a chair at the top of some stairs. A claim for compensation for this episode of injury was accepted in 1973 (T3, p3). It is the Applicant's contention that the injury and the haemorrhagic pancreatitis resulted in his late brother drinking alcohol to excess to relieve the abdominal pain associated with his pancreatitis. As a direct consequence of his alcohol abuse, he died from acute liver failure, alcoholic liver disease and acute renal failure.
The Applicant relied in part upon the opinion of Dr Shean, a general practitioner who attended his late brother over the period 1975 to 1993. In a report dated 5 October 1999, Dr Shean stated:
"I believe that the nature of his employment in the Australian Navy, the anxiety and stress caused by the collision of the two vessels, his subsequent attack of acute pancreatitis, the large degree of stress and anxiety that exacerbated the problems, he's [sic] reliance on alcohol to control his symptoms subsequently led to his death." (Exhibit A2)
Further the Applicant contended that his late mother was financially partially dependent upon his late brother at the time of his death in that at the time of death his late brother was contributing and had been contributing since 1986 a monthly sum of $100.00 to his mother. Contributions had earlier commenced in 1960, and during his late brother's service, a fortnightly amount of $80.00 was contributed to his mother, and between 1973 and 1986 a monthly sum of $80.00 was contributed.
Further the Applicant contended that his late brother had provided further financial contributions to his mother for phone accounts and rates as well as for various family Christmas presents. In similar vein the Applicant stated that his late brother drove his mother to shopping and for attendance at medical appointments.
The Respondent contends that there is no evidence that the Applicant's deceased brother suffered an injury, as defined within section 4 of the Act, which resulted in his death. Further, the Respondent submits that there is no evidence that the Applicant's mother was partly dependent on the late brother at the date of his death. As a consequence the Respondent submits that the Applicant has no entitlement to any compensation under the Act.
CONSIDERATION AND FINDINGS
In relation to the issue of whether an injury was suffered, the Tribunal observes that this matter involves material and circumstances dating back to 1960, when the Applicant's deceased brother commenced his service with the Navy. As a consequence, much of the material surrounding his two episodes of Navy Service suffers from a lack of necessary medical and factual detail, which is further compounded by the absence of any particular evidence from the Applicant's deceased brother. Nevertheless on the material available the Tribunal is able to find the following relevant facts:
i)Allan Mason did enlist in the Navy in August 1960 and served until 1969. Early in this period of enlistment, an apparent psychotic episode occurred in 1964, whilst serving on HMAS Vampire. As a consequence Allan Mason was repatriated to Sydney, and following further observation and assessment was found to be fit for full duty.
ii)Allan Mason was a crewmember on HMAS Melbourne when that vessel collided with the USS Frank E. Evans in early June 1969.
iii)There is a period between Allan Mason's discharge in 1969 and his subsequent re-enlistment into the Navy in September 1972 about which little evidence has been adduced.
iv)That after re-enlistment in September 1972 Allan Mason suffered an injury on 30 October 1972 when falling over a chair at the top of some stairs, resulting in concussion and multiple bruising. A claim for compensation was made for this injury and accepted on 14 November 1973.
v)That Allan Mason was admitted to Balmoral Naval Hospital on 15 November 1972 with abdominal pain, diarrhoea and vomiting, having previously been treated as an outpatient for pain and vomiting. A diagnosis of acute pancreatitis was made on 16 November 1972, with transfer to Royal North Shore Hospital on 25 November 1972 because of his deteriorating condition.
vi)Two operations were performed at Royal North Shore Hospital, involving a sub-total pancreatectomy and abscess drainage, with the diagnosis of acute haemorrhagic pancreatitis being confirmed.
vii)A Naval Medical Board was held at Royal North Shore Hospital on 16 January 1973 which concluded that Allan Mason had the constitutional disability of acute haemorrhagic pancreatitis which had been aggravated by his naval service. Such a finding was confirmed on behalf of the Navy Medical Director General on 25 January 1973.
viii)At a further medical board at time of discharge from the Navy, Allan Mason stated that he continued to suffer from abdominal pains and loss of strength (3 September 1973). The final medical board (14 September 1973) found that Allan Mason had the disability of post- haemorrhagic pancreatitis, a constitutional disability aggravated by his naval service. Such findings were confirmed by the Medical Director General of the Navy on 26 September 1973. Mr Allan Mason was invalided from the Navy with a 30 per cent Defence Force Retirement Benefits Fund pension and a claim for compensation for his pancreatic disability.
ix)Mr Allan Mason's post-naval discharge medical history as documented in the medical evidence reveals:
(a) a continuum of his naval disability in that there are further episodes of acute pancreatitis, coupled with continuing episodic abdominal pain associated with increasing use of alcohol for pain relief.
(b) the further development of diabetes mellitus – this condition having first been observed in his post-partial pancreatectomy at the Royal North Shore Hospital in January 1973.
(c)   admission to hospital for diabetic complications, including hyper and hypoglycaemic coma, cataracts, peripheral neuropathy and burns.
(d) alcohol associated conditions including pancreatitis, complications of diabetes, peripheral neuropathy, cerebellar dysfunction, liver disease and peripheral vascular disease. (Exhibit R1)
x)Cause of death of Allan Mason was nominated on his death certificate by the attending specialist physician, Dr Radvan, as:
" I (a)   Acute liver failure    1 month
    (b) Alcoholic liver disease     years
    (c) Alcohol abuse     years
II        Acute renal failure    1 week
          (hepatorenal syndrome)"
In considering whether financial dependency existed (Exhibit R1), the Tribunal makes the following finding of fact with particular reference to the relevant time, namely the date of Mr Allan Mason's death (21 February 1993):
i)The mother, Mrs Mason, was the sole owner of the house in which she and her son Allan resided.
ii)That both the mother, Mrs Mason, and Allan had independent sources of income in the financial year 1991/1992, namely the aged pension for Mrs Mason ($8,008.20) and the Defence Force Retirement Benefit Fund pension for Allan ($19,638.00).
iii)That Allan contributed $100.00 a month to his mother's account; that this had commenced in 1973; until 1986 (1973 being the time when Allan returned to live with his parents in the family home) Allan had contributed $80.00 per month. Further there had also been payments by Allan during his naval service on a fortnightly basis.
iv)That Allan had contributed periodically to payment of rates for the house and telephone expenses. Also Allan had contributed for Christmas presents for relatives.
v)That Allan had assisted his mother by the provision of transport for shopping and attendance at medical appointments.
vi)That Allan and his mother undertook differing caring responsibilities for each other, but with his deteriorating health a greater caring responsibility fell to his mother.

In determining whether the Applicant's deceased brother suffered an injury during his naval service which resulted in his death and whether the Applicant has standing in this matter, the Tribunal notes the relevant sections of the Act:
"55.   (1)   Where a person who is entitled to make a claim for compensation under this Act dies without making a claim, a claim may be made by the person's personal representative.
…"
"17.   (1)   This section applies where an injury to an employee results in death.
…
(3)   Subject to this section and to sections 16 and 18, if the employee dies leaving dependants some or all of whom were, at the date of the employee's death, wholly dependent on the employee, Comcare is liable to pay compensation in respect of the injury of $120,000 and that compensation is payable to, or in accordance with the directions of, Comcare for the benefit of all of those dependants.
(4)   If the employee dies without leaving dependants who were wholly dependent on the employee at the date of the employee's death but leaving dependants who were partly dependent on the employee at that date:
(a)   subject to this section and to sections 16 and 18, Comcare is liable to pay compensation in respect of the injury of such amount, not exceeding $120,000, as Comcare determines, having regard to any losses suffered by those dependants as a result of the cessation of the employee's earnings; and
(b)   that compensation is payable to, or in accordance with the directions of, Comcare for the benefit of those dependants."
"4.(1)    …
'dependant', in relation to a deceased employee, means:
(a)     the spouse, father, mother …
      …
being a person who was wholly or partly dependent on the employee at the date of the employee's death.
'dependent' means dependent for economic support;
'disease' means:

(a)any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation;
'injury' means:
(a) a disease suffered by an employee; or
(b)…
…"

With regard to the standing of the Applicant in this matter the Tribunal notes that the Applicant is bringing the action as personal representative of the estate of his late mother in accordance with section 55(1) of the Act. The late Mrs Mason, as the mother of Allan, falls within the definition of dependant under section 4 of the Act and in accordance with section 17(3) or (4) of the Act may be entitled to compensation as a result of the death of her son. The Tribunal concludes that the Applicant has standing in this matter.
Further the Tribunal, while nothing that the disease sequence commenced in 1972, concludes that with the date of death of Mr Allan Mason occurring in February 1993, the appropriate Act under which this matter should be determined is the 1988 Act In addressing the issue of dependency, the Tribunal notes section 17 of the Act which nominates the operative date for the determination of dependency as the date of the employee's death. In this case, the operative date is 21 February 1993.
The Tribunal in earlier considerations has made particular findings of fact. A significant finding of fact was that the Applicant's deceased brother suffered a disability of haemorrhagic pancreatitis, a constitutional disability which was aggravated by Naval Service and which resulted in the late Mr Mason being retired on invalidity grounds from the Navy in September 1973. While much medical detail is not available for the Tribunal to consider, four possibilities as to the cause of pancreatitis have been nominated in this matter, namely:
i)alcohol related
ii)trauma induced
iii)mumps or viral related
iv)idiopathic.

The Tribunal, while mindful of the four possible causes nominated, is not in a position to comment as to what is the most likely cause as the medical evidence is neither sufficient nor of an authoritative medical nature.

Nevertheless the medical evidence available from the two Navy Medical Boards is assessed by the Tribunal as clearly stating that the disability of haemorrhagic pancreatitis was a constitutional disability aggravated by his naval service. The Tribunal notes that such findings were confirmed on at least two occasions by the Medical Directorate of the Navy Office, and further that no evidence was led to refute such findings. It therefore accepts the Navy Medical Board's findings as authoritative medical evidence of the circumstances existing at that time. The Tribunal, notes that the particulars of the service related aggravation were not disclosed on any of the available medical board documentation. It nevertheless accepts that, in the absence of any argument to the contrary, the Boards' findings were made in good faith and on the medical evidence available to the various medical boards, and further that as a consequence of such findings an invalidity pension was paid to the late Allan Mason. Accordingly the Tribunal concludes that on the balance of probabilities the constitutional disability of haemorrhagic pancreatitis was aggravated by the Applicant's deceased brother's naval service.
In turning to the definition of disease within section 4 of the Act the Tribunal is mindful of the Full Federal Court's discussion of "material" in Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 at 323:
"The use of the word 'material' in conjunction with the words 'contributing factor' in the legislation, where it has occurred in expositions of the section in other cases clearly is not intended to add to the section any significance which is not already to be found in the words used by the legislature. It has served only to emphasise that the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of. The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small."

The Tribunal is therefore persuaded that the circumstances detailed in this matter permit it to find that the definition of "disease" within section 4 of the Act is met. As a consequence the Tribunal finds that the Applicant's deceased brother suffered an injury as defined in section 4 of the Act.

The Tribunal, in earlier findings of medical fact, found that the late Allan Mason suffered from continuing episodic abdominal pain and clinical attacks of pancreatitis, an increasing alcohol usage and eventually a chronic alcohol abuse disability. The Tribunal also found that the surgery for the pancreatitis and the continuing pancreatitis led to the Applicant's late brother developing insulin dependent diabetes and the diabetic complications of cataracts, peripheral neuropathy and myopathy, burns and various hypo and hyperglycemic conditions. Further the Tribunal found that, while being unable to make any probable finding as to whether alcohol had played a part in the causation of the pancreatitis, alcohol was used in increasing amounts by the Applicant's deceased brother initially to assist in pain relief for his abdominal condition, but later as a consequence of being a chronic alcohol user. Further it was the Tribunal's finding that the cause of the Applicant's deceased brother death was acute liver and renal failure associated with chronic liver disease and alcohol abuse over many years.
The Tribunal, in considering the myriad of medical conditions involved in this matter, observes that alcohol consumption by the Applicant's deceased brother is a central and continuing theme over the 20 years he was attended by his general practitioner. The Tribunal notes that Dr Shean associates an increasing drinking habit in the Applicant's deceased brother with "the nature of the pain and discomfort that he suffered" and further records his patient as feeling that his alcohol problems were related to stresses and strains that had occurred during the course of his service in the Australian Navy."
In considering all the medical evidence, and giving particular weight to that of the attending general practitioner over a 20 year period, it is the Tribunal's finding that on the balance of probabilities, the Applicant's deceased brother did suffer an injury during his naval service and that injury, while directly causing insulin dependent diabetes and a subsequent array of diabetic complications, continued to cause the Applicant's deceased brother intermittent abdominal pain and recurrent attacks of pancreatitis, with the Applicant's deceased brother resorted to alcohol to relieve the symptoms of his pain, discomfort and stress arising from this condition. Further the Tribunal finds that increasing alcohol consumption led to chronic liver disease, cerebellar dysfunction and eventually death from acute liver and renal failure.
In arriving at such a finding that the late Allan Mason suffered an injury during his naval service, which has resulted eventually in his death, the Tribunal has relied upon the evidence of the Applicant, the medical records where they exist, the findings of the Navy Medical Boards and their confirmation thereof by higher medical authority, the evidence and opinions of the attending general practitioner over time, Dr Shean, and the specialist medical opinion of Dr Radvan relating to matters around the time of death.
The Tribunal had no factual evidence as to the Applicant's deceased brother alcohol consumption for the periods either prior to his attack of haemorrhagic pancreatitis in November 1972 and between the time of the collision episode between HMAS Melbourne and the USS Evans and his rejoining the Navy in September 1972. It was and remains the task of the Tribunal to deal with the material that is placed before it. As such, the Tribunal, having found that an injury, by way of a pancreatitis condition, was suffered during his naval service, further finds that this condition contributed to the late Allan Mason's use and abuses of alcohol, - alcohol being used by Allan Mason to assist in pain relief for his abdominal condition (Dr Shean) and the Applicant's statement that Allan had a fear of becoming addicted to pain killing needles that he received on a regular basis in hospital and resorted to alcohol as a pain relief substitute and only asked for medical assistance when his constant pain and stress became unbearable (Exhibit A2). The Tribunal further finds that the Applicant's deceased brother's use and abuse of alcohol materially contributed to his death from acute renal and liver failure. The Tribunal is also of a view that Allan's diabetic condition and many complications, arising as a result of surgery to his pancreas and his continuing attacks of pancreatitis may have had a material contribution to the disease process leading to his death (Dr Radvan's recurrent infective encephalopathy – T10). Finally, the Tribunal, and only by way of a comment, acknowledges that other stressors may have occurred during his naval service (eg the collision) which may have led to use and abuse of alcohol to relieve stress and/or anxiety and in turn alcohol may have been a causal factor in his attack of pancreatitis in November 1972 – but again the Tribunal stresses that there is insufficient evidence to grant merit to these possibilities.
In regards to the issue of whether his mother was wholly or partially dependent on her son at the date of his death, the minimal records presented in support of economic dependence indicate a contribution by the son of $100.00 a month for many years prior to and up to the time of death to his mother. The Applicant also states that his deceased brother made further contributions for rates and telephone expenses, as well as contributions for family Christmas presents. The Tribunal notes that the house was wholly owned by the mother at the operative time and that both mother and son were in receipt of separate incomes (mother $8008.20, son $19,638, for financial year 91/92).
The Tribunal, in assessing the issue of dependency, had drawn to its attention the matter of Re Lambroglou and Commonwealth (1989) 19 ALD 33 where at 36 the Tribunal said:
"Dependency, in my view, is the reliance by a person upon the earnings of another for economic support, and that reliance is either whole or in part. If a person does not earn and relies upon the earnings of another for support, that person is wholly dependent. If a person does earn, but those earnings are not sufficient to allow that person to be self supporting, and relies also on the earnings of another, that person is partly dependent, that is that person depends in part on the earnings of that other person for support."
The circumstances in this matter are particular in that the mother was the sole owner of the home for many years leading up to the operative time, with the son residing there and obviously at the time in question unable to properly care for himself, when his mother was admitted for respite care. Further the mother had an independent income of some $8,000.00, per annum. The Tribunal, on the limited evidence presented, notes that the Applicant's deceased brother made a contribution of $100.00 per month as well as further financial contributions of an unspecified amount for rates, telephone expenses and Christmas presents.
The Tribunal, in the absence of any particular evidence being tabled or adduced that the mother was financially dependent on such income for economic support, concludes that such payments are not evidence of financial dependency. Further, no evidence was led or adduced that the mother, as sole owner of the house, was unable to live on her own income. In the absence of any evidence to the contrary, it would appear to the Tribunal that the Applicant's deceased brother's financial contributions in the period leading up to the time of his death are more likely to reflect a minimalist contribution for board and lodging and/or his part of shared expenses for the household. As a consequence the Tribunal finds that the mother was neither wholly or partly dependent on the earnings of the son, Allan, for economic support.

DETERMINATION

The Tribunal, in summary finds:
(1)that the Applicant's deceased brother suffered an injury during his naval service which eventually resulted in his death; and
(2)that his mother was not wholly or partly dependent on the earnings of her son for economic support at the time of his death

and as a consequence determines that the decision under review is affirmed, albeit that the findings leading to the affirmation are varied.

I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of
Dr J D Campbell, Member

Signed:         .....................................................................................
  Associate
Date/s of Hearing  5 November 1999
Date of Decision  22 February 2000
Solicitor for Applicant               Applicant unrepresented
Solicitor for the Respondent    Ms L Rieper, Barker Gosling