McClure and Repatriation Commission
[2000] AATA 292
•14 April 2000
CATCHWORDS – VETERANS' AFFAIRS – entitlement to pension – whether veteran's impairment resulted from his serious default (s. 9(4)) – whether veteran drove under the influence of alcohol or drugs – whether serious default with reference to standards prevailing at time of incident – whole of circumstances relevant – decision set aside.
Insurance Contracts Act 1984 – s 66,
Road Traffic Act 1961 (SA)
Traffic Act 1949 – s 16
Transport Act 1960 (Qld)
Veterans' Entitlements Act 1986 – ss 9, 13, 70
Boral Resources (Queensland) Pty Ltd v Pyke (1989) 93 ALR 89; [1992] 2 QdR 25
Doyle v Rowbottom [1991] SASC 2747, 8 March, 1991
Ferriday v Repatriation Commission (1996) 42 ALD 526; (1996) 24 AAR 29; (1996) 69 FCR 521; (1996) 150 ALR 67
Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155; (1982) 56 ALJR 307; (1982) 40 ALR 45
McPherson v Repatriation Commission (1989) 87 ALR 275; (1989) 10 AAR 142
Repatriation Commission v Hayes (1982) 43 ALR 216; (1982) 5 ALD 8; (1982) 64 FLR 423
Repatriation Commission v Levi (1994) 33 ALD 79; (1994) 61 FCR 189
Rothwell v Caverswall Stone Co. Ltd [1944] 2 All ER 350
DECISION AND REASONS FOR DECISION [2000] AATA 292
ADMINISTRATIVE APPEALS TRIBUNAL )
) Q1999/329
GENERAL ADMINISTRATIVE DIVISION )
Re JEFFREY RAYMOND McCLURE
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Miss S A Forgie (Deputy President)
Date 14 April, 2000
Place Brisbane
Decision The Tribunal:
1.sets aside the decision of the respondent dated 11 September, 1998 and affirmed by a decision of the Veterans' Review Board dated 8 February, 1999; and
2.substitutes a decision that the applicant's cervical-spondylosis is a war-caused disease within the meaning of s. 9 of the Veterans' Entitlements Act 1986.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 17 March, 1999, the applicant, Mr Jeffrey Raymond McClure, applied for review of a decision of a delegate of the respondent, the Repatriation Commission ("Commission") dated 11 September, 1998. That decision had been affirmed by a decision of the Veterans' Review Board ("VRB") dated 8 February, 1999. The decision had been to reject Mr McClure's claim that his cervical-spondylosis was a war-caused condition within the meaning of the Veterans' Entitlements Act 1986 ("the VE Act").
At the hearing, Mr O'Gorman of counsel represented Mr McClure and Miss Ford of counsel represented the Commission. The documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("T documents") were admitted in evidence together with a statement by Mr McClure and an extract from the Synopsis of Psychiatry (Kaplan, HI and Sadock, BJ, 6th edition, Williams & Wilkins) relating to psychoactive substances. Reference was also made during the hearing to Oral evidence was given by Mr McClure in support of his case.
THE ISSUE
The issue in this case is whether Mr McClure's cervical-spondylosis "resulted from … [his] serious default" as that expression is used in s. 9(4) of the Act.
BACKGROUND
Many of the factual matters in this case were not in dispute. In light of that, and on the basis of the evidence, we have made a number of findings of fact that we will now set out.
We find that Mr McLure served in the Australian Army as a national serviceman for a period of two years. He has operational service in Vietnam from 17 September, 1969 until 17 September, 1970. As a result of that service, Mr McLure has developed psychoactive substance abuse and post traumatic stress disorder ("PTSD"). Both have been accepted as war-caused diseases within the meaning of the VE Act: psychoactive substance abuse by the Commission on 17 August, 1995 and PTSD by the VRB on 21 August, 1997.
Mr McLure was involved in a motor vehicle accident on 12 June, 1972. As a result of that accident, he fractured the base of his odontoid process and was hospitalised for 80 days. As a result of the fracture, he now suffers from cervical-spondylosis. It has been accepted that Mr McClure's accident would not have happened but for his suffering from PTSD and/or psychoactive substance abuse. As cervical-spondylosis is more properly described as a disease, in the sense of an ailment (The Macquarie Dictionary, 2nd edition, 1991), than an injury, it is also accepted that his incapacity is deemed to have arisen out of that disease. Consequently, it is accepted that Mr McClure's cervical-spondylosis is a war-caused disease.
LEGISLATIVE FRAMEWORK
Sub-section 13(1) of the VE Act provides that, subject to the VE Act, the Commonwealth is liable to pay a pension by way of compensation to a veteran if his or her injury or disease was war-caused. The amount of that pension and the terms under which it is payable are determined by the VE Act. Pursuant to s. 70(1), the Commonwealth is liable to pay pension by way of compensation to a member of the Forces if he or she has become incapacitated from a defence-caused injury or defence-caused disease. This is the effect of s. 9(2)(b).
A veteran's injury or disease is taken to have been "war-caused" if it meets one of the criteria specified in ss. 9(1) and (2) and does not come within one of the qualifications to those criteria. Mr McClure's incapacity meets the criteria specified in s. 9(2). In so far as that sub-section is relevant, it provides that:
"For the purposes of this Act, where any incapacity of a veteran was, in the opinion of the Commission, due to an accident that would not have occurred, or due to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war service:
(a)if that incapacity was due to an accident – that incapacity shall be deemed to have arisen out of the injury suffered by the veteran as a result of the accident and the injury so suffered shall be deemed to be a war-caused injury suffered by the veteran; or
(b)if the incapacity was due to a disease – the incapacity shall be deemed to have arisen out of that disease and that disease shall be deemed to be a war-caused disease contracted by a veteran."
In this case, the VRB found that Mr McLure suffered incapacity as a result of his cervical-spondylosis. His cervical-spondylosis was due to the motor vehicle accident he had on 12 June, 1972. He would not have had the motor vehicle accident but for his having suffered PTSD and he would not have suffered PTSD but for his having rendered eligible war service. Consequently, the VRB found that Mr McClure's cervical-spondylosis was a war-caused disease within the meaning of s. 9(2). Neither party challenged that finding and I also accept it.
That, however, is not an end of the matter. Sub-section 9(2) does not apply to his cervical-spondylosis if:
"… the incapacity of the veteran from that injury or disease resulted from the serious default or wilful act of the veteran that happened after the veteran ceased, or last ceased, to render eligible war service." (s. 9(4))
Miss Ford did not submit that Mr McClure's incapacity resulted from his wilful act. The issue in this case centred solely upon whether it resulted from his serious default.
THE EVIDENCE
Mr McClure gave both oral and written evidence regarding the motor vehicle accident. He said that he classified himself as a "chronic drinker" at the time of the accident. He would often drive home after drinking a large quantity of alcohol.
During the afternoon of Sunday, 11 June, 1972, Mr McClure said, he probably would have been to the Surfers' Paradise Beer Garden. It was usual for him to go there on Sundays. He would have been there only between the hours of 4.00 and 6.00pm as there was restricted Sunday trading in 1972. As it was daytime, he probably drank beer at that time. Mr McClure could not recall when he started drinking on that day. He would not have drunk the whole time before the party and would have been sober before he went to it.
Mr McClure had dinner at home and then went to a party at Broadbeach. He arrived at the party at about 8.00 or 9.00pm taking with him a 26 fluid ounce bottle of bourbon as well as a bottle of Coca Cola. The bottle was "mostly full" when he went to the party. He believed that he was the only person who drank the bourbon, but that someone else drank some of the Coca Cola at the party. The police had told him after the accident that there was half a bottle of bourbon in the motor vehicle after the accident. He would have drunk the majority of the half of the bottle that had been drunk.
At the party, Mr McClure said that he became involved in a discussion with two young women about the Vietnam war. He said that, in their view, any injuries suffered by Australians fighting in Vietnam were their own fault. In their view, Australians should not have been in Vietnam in the first place and any national servicemen who were there found themselves in that situation only because they had not done enough to get out of going or to get out of national service. Mr McClure became really angry as he felt that a large number of Australian soldiers in Vietnam were national servicemen who had no choice about being there. It was not a protracted conversation and it occurred at about 1.00 or 2.00 am.
During the discussion and perhaps a little before, Mr McClure said, he smoked some cannabis. He did not smoke a whole cigarette and only had a few puffs as it was passed around among the group. After the conversation, he did not stay either to drink or to smoke. He was very angry.
Mr McClure said that he had not travelled far from the party when he had the accident. The hospital admission notes show that he arrived at the hospital at 4.00am and had been involved in a motor vehicle accident 40 minutes prior to his admission (T documents, page 17).
Before the accident, Mr McClure said, he was travelling behind a Morris on the highway and could not pass it because of oncoming traffic. Eventually, he was able to pass it but his mind was not totally focused on his driving as he was thinking about the conversation with the young women. The highway then altered to a divided highway. The right hand wheel of his motor vehicle struck the kerb on the dividing nature strip. He described the events following in his statement:
"…I was in the right hand lane. In Vietnam we drove on the right hand side of the road. When I came back to Australia this could be confusing at times. That night my head was full of Vietnam and the right hand lane would seem the one to be in. This rocked the vehicle and caused my head to hit the driver's side window. This hurt like hell. I tried to straighten my thoughts out, but my ear was still hurting. I then put my hand up to my ear and saw that it had blood on it and felt a bit of my ear ripped. This seemed to make it hurt more and I thought, 'what else could go wrong'. This made me thing that it was pretty well the end of me. In despair, I fell down across the driver's seat and I veered the car across to the left hand side. I then put my foot on the brake intending to stop in the left hand lane. I then stuck my head up and saw that I was on the footpath, fence on the left, power poles on the right and saw that Shaster House was coming up quickly. I then put my foot on the brake a bit more and lay back down on the seat. That's about all I remember (sic) When I woke up in Southport Hospital and they asked me if I knew what happened I told them no. The more they told me about the accident, the more I remembered. I told them I must have gone to sleep. The whole time that the accident was occurring my head was filled with anger and frustration about my argument earlier in the evening. The next thing I know my car hit Shaster House." (Exhibit A, paragraph 10)
Had he been under the influence only of alcohol on the night of the accident and had not had an emotional reaction to an argument, Mr McClure believed that he would not have had the accident.
Mr McClure was charged with, and convicted of, driving without due care and attention. A nominal fine was imposed.
CONSIDERATION
As it is used in s. 9(4), the expression "resulted from" means that there must be a causal connection between the incapacity that Mr McClure has suffered from his cervical-spondylosis and any serious default before that provision takes effect. That is the ordinary meaning of the expression "resulted from" (Rothwell v Caverswall Stone Co. Ltd. [1944] 2 All ER 350, Court of Appeal, Luxmoore and du Parcq LJJ, Scott LJ dissenting). If Mr McClure had been engaged in a serious default but there was no causal connection between that default and his incapacity, s. 9(4) would not come into effect to take his cervical-spondylosis outside the scope of s. 9(2).
What is a "serious default"? The ordinary meanings of the word "default" include "… failure to act; neglect …" (The Macquarie Dictionary, 2nd edition, 1991). The word "serious" is defined, in so far as it is relevant, to mean "… 3. being in earnest; not trifling. 4. demanding earnest thought or application: serious reading, serious music. 5. weighty or important: a serious matter. 6. giving cause for apprehension; critical: serious illness …" (The Macquarie Dictionary, 2nd edition, 1991).
Reference was made to the expression "serious default" in the context of the Act in Repatriation Commission v Hayes (1982) 43 ALR 216 (Keely J) but its meaning was not considered. It was considered in Repatriation Commission v Levi (1994) 33 ALD 79 but Einfeld J did so as part of the composite expression "serious default or wilful act" and did not separate its component parts. He said of s. 9(3), which has a similar disentitling effect to s. 9(4):
"As I read the Act, the parliament intended by s 9(3) to exclude from entitlement to a pension those service personnel who were in a serious or significant way the deliberate creators or knowing authors of their own injuries or diseases; people who contracted their conditions while quite outside their proper functions and activities as members of the Australian armed services; people who brought upon themselves their injuries or diseases by acting in such manifest disregard of their duties as service personnel as to take themselves outside an entitlement to compensation at the hands of the Australian taxpayers for injurious events in their war service." (page 89)
In Girlock (Sales) Pty Ltd v Hurrell (1981-82) 149 CLR 155, the High Court considered whether Mr Hurrell had suffered personal injury, without any "substantial default or wilful act" on his part, while he was travelling between his residence and his place of employment. Mr Hurrell had been injured when the motor vehicle he was driving came to be broadside across the lanes of traffic on the wrong side of a highway. His motor vehicle collided with another travelling in the opposite direction. Evidence was given before the Workers' Compensation Board of Western Australia that the percentage of alcohol in his blood would severely impair his ability to drive a motor vehicle.
There was no challenge to the Board's finding that Mr Hurrell's driving in that state amounted to a "substantial default or wilful act". It had also found that to drive on the incorrect side of the highway had almost compelled the collision and so was itself a "substantial default or wilful act ". Mason J did not consider that this conclusion could be maintained. He said:
"In Bagot v Commissioner for Railways (1943) 44 SR (NSW) 173 at p. 175 Jordan CJ speaking of the phrase 'default or wilful act' in s. 7(1)(b) of the Workers' Compensation Act 1926-1942 (N.S.W.), a provision similar to s. 7(1a), though it did not contain the adjective 'substantial' said:
'In its present context, the purpose of the phrase is to relieve employers in certain circumstances from liability which is otherwise cast upon them to compensate employees for disabling injuries which they received whilst travelling to or from their place of employment. In these circumstances, I think that 'default' means failure by the worker to comply with a legal duty to be careful, the failure being of a kind inherently likely to cause disabling physical injury to himself, and in fact causing or contributing to the injury in question.'
This statement implicitly denies the proposition that an involuntary act can constitute a 'default', let alone a 'substantial default'. To drive on the incorrect side of the highway could, for many reasons, be a purely involuntary act and thus not in itself the subject of a 'substantial default or wilful act'. Of course, this Court can only set aside a finding of the Board which was not open on the evidence. But, putting aside the respondent's intoxication as a separate issue, for my part I cannot see that there was any evidence which went to establishing that the respondent's behaviour in driving on the wrong side of the highway amounted to a default. The respondent's intoxication must be seen as a separate and distinct issue because, even if he was on the wrong side of the highway as a consequence of his intoxication, that is not the same thing as saying that his behaviour in so doing itself amounted to a 'substantial default or wilful act' under the Act." (pages 166-167)
The expression "serious or wilful misconduct", or similar expressions, has been considered in the context of wrongful dismissal and workers' compensation actions. It has also been considered in the context of s. 66 of the Insurance Contracts Act 1984 which limits the occasions upon which an insurer may bring an action by way of subrogation against a negligent employee of its insured. An insurer does not have the right to be subrogated to the rights of the insured against the employee where the conduct of the employee that gave rise to the loss occurred in the course of, or arose out of, the employment and was not serious or wilful misconduct.
The Full Court of the Supreme Court of Queensland in Boral Resources (Queensland) Pty Ltd v Pyke (1989) 93 ALR 89 (Thomas and Ambrose JJ, Derrington J dissenting) considered s. 66. Boral's employee, Mr Pyke, fell asleep at the wheel and had a motor vehicle accident causing damage to its property. He worked for about 16 hours before finishing at approximately 6.15pm. At a meeting at a hotel, he ate two meat pies and drank between 12 and 13 seven ounce glasses of beer. Mr Pyke had not eaten since midnight the night before. After leaving the hotel at approximately 8.30pm, he felt capable of driving but, without warning, he fell asleep and failed to negotiate a bend. Mr Pyke was in contravention of s. 62 of the Transport Act 1960 (Qld) as he had driven longer hours than permitted by that provision. Boral was found to have connived in the falsification of his log entries.
Medical evidence was led as to the effects of alcohol and overwork in the context of a person's falling asleep at the wheel. Thomas J considered that Mr Pyke's election to drive after consuming a substantial amount of alcohol must be regarded as the cause of the ensuing damage. He then considered whether it amounted to "serious misconduct" and said:
"There is no doubt that this conduct gave rise to the loss and that it was misconduct. That misconduct cannot be labelled as anything less than serious. The conduct is not to be judged from the standpoint of pressure groups such as insurers or employees. The exercise is, as the preamble to the Act recites 'to enable a fair balance to be struck between the interests of insurers, insureds and other members of the public and to ensure that the practices of insurers operate fairly'. I do not think that double standards can be tolerated such that this drink driving conduct is not to be regarded as serious misconduct in the context of the employer's insurer exercising a remedy against him. From a wider community viewpoint, such conduct is seriously regarded, especially if damage is caused. If he had caused significant injury to anyone in consequence of driving in such circumstances, the fact that he had consumed liquor of that quantity would almost certainly have resulted in a significant increase in a custodial sentence, possibly of the order of an extra 12 months jail. Heavy sentences for the consequences of such driving are a response to the identification of drink driving as one of the greatest community problems of the present time. The problem is only compounded when heavy vehicles are driven. Of course no one was injured; only the employer's vehicles suffered. But the intrinsic seriousness of the conduct remains when one measures it in the context of his relationship with his employer." (page 98)
Ambrose J emphasised that, in the context of the Insurance Contracts Act 1984:
"Whether in the circumstances an employee's misconduct may properly be termed as 'serious' will depend upon the nature of the misconduct; one must keep in mind that it is misconduct as an employee and not in any general sense which is relevant under s 66(b). Where, under the terms of employment, specified conduct on the part of an employee is expressly prohibited and warrants instant dismissal it will normally be difficult I should think, to describe that misconduct as being other than serious: the fact that that misconduct also constitutes a criminal offence attracting penalties of imprisonment and/or the imposition of a fine makes it impossible in my view to describe it as other than serious." (page 115)
Although the Commission did not argue that Mr McClure's incapacity had resulted from a "wilful act", it is useful to dwell for a moment on that expression as it is used in s. 9(6) of the Act. It was considered by Morling J in McPherson v Repatriation Commission (1989) 87 ALR 275. That sub-section has a similar effect to s. 9(4) in that an injury or disease which would otherwise be war-caused within the meaning of s. 9(1)(e) is not to be treated as war-caused if its aggravation resulted from the veteran's serious default or wilful act. Morling J said:
"The meaning of s 9(6) appears not to have been considered in previous cases. In some contexts 'wilful' may mean no more than deliberate or intentional, as distinct from unintentional. But 'wilful' is more commonly used in modern speech of bad conduct or actions than of good: Wheeler v New Merton Board Mills Ltd [1933] 2 KB 669 at 677. To my mind, in the context of the Act 'wilful act' connotes conduct which is blameworthy and deserving of serious censure. The effect of depriving a veteran of a pension to which he is otherwise entitled is to penalise him severely. The legislature cannot have intended that such a severe penalty should be visited upon a veteran in the absence of conduct warranting severe condemnation. I think there is much force in the observation made in Re Lynch and Repatriation Commission (1988) 14 ALD 530; 8 AAR 240 at 243 that it is inconceivable that Parliament could have intended that a man who gave false information about his medical condition in order to enlist was thereby to be deprived of a repatriation commission." (pages 279-280)
His Honour went on to consider whether a veteran's motives for acting in a certain way were relevant in assessing whether conduct could be characterised as a "wilful act". He said:
"In my opinion it was erroneous for the tribunal to disregard the appellant's motivation. A veteran's motivation must be relevant to the question whether his conduct was such as to warrant him being deprived of a pension. In the present case, whether the appellant's conduct was so blameworthy and deserving of censure as to warrant depriving him of a pension could not properly be determined without regard to his motivation. If his motivation in suppressing information as to the condition of his feet had been, say, to advance his financial or other interests, his conduct in that regard might have been deserving of censure. But if his motivation for that conduct was a desire to serve his country in time of war it was well open to the tribunal to find that his conduct was not so blameworthy as to warrant a finding that it was a 'wilful act'.
There is a danger in considering the nature and seriousness of the appellant's conduct in the cold light of s 9(6) without regard to the very special conditions which existed in time of war. It was unwise for the appellant to give wrong answers to questions relating to the condition of his feet and to suppress the fact that they gave him trouble. But I doubt whether it would have occurred to any young man in the war years that there was anything seriously wrong in what he did.
In my opinion, the tribunal erred in law in concluding that the appellant's conduct disqualified him from receiving a pension without taking into account and giving due weight to his motive for engaging in that conduct." (pages 280-281)
In light of the general principles expressed in these cases in relation to the particular expressions and contexts with which they were concerned, I now return to s. 9(4) of the VE Act. A "serious default" might be thought to be a failure to act that it is not trifling. In view of the purpose of the Act to provide for the payment of pensions, benefits and medical and other treatment for veterans, it must be a failure that warrants severe condemnation for the effect of finding that there has been a "serious default" in the context of s. 9(4) is to penalise a veteran severely.
In determining what is and is not a serious default in the context of the Act requires a consideration of the whole of the circumstances surrounding the veterans' actions, or lack of action. His or her reasons for acting, or failing to act, in a certain way are relevant as are the standards of behaviour expected of a person in the circumstances in which he or she finds him or herself. It is apparent from what Morling J said in McPherson (see paragraphs 29, 30 above), that the person's conduct is to be judged by reference to the circumstances and standards prevailing at the time the relevant events occurred and not by reference to those prevailing at the time of the hearing or even with the advantage of the perfect vision given by hindsight.
Finally, the issue of whether or not a veteran's incapacity from an injury or disease resulted from a serious default is to be decided according to the standard of proof set out in s. 120(4) of the Act i.e. the standard of reasonable satisfaction (Ferriday v Repatriation Commission (1996) 42 ALD 526 (Lee J).
I will turn now to Mr McClure's case in light of these principles. His incapacity results from his cervical-spondylosis and that condition results, in turn, from his suffering the fracture of the odontoid process in the accident. As there is a chain of causation between his cervical-spondylosis and the accident, the issue for the purposes of s. 9(4), becomes: did the accident result from Mr McClure's serious default?
I am satisfied that Mr McClure was in default in failing to fulfil his obligation to maintain his motor vehicle in its correct course on the highway and to avoid collision with buildings located to the side of the highway. The accident occurred as a result of his default.
Was his default serious? Miss Ford submitted that it was because he drove while his ability to do so was impaired and the accident resulted from his impaired driving. His ability was impaired because of one of the following: the alcohol he had consumed prior to driving; a combination of alcohol and cannabis; or a combination of alcohol, cannabis and the effects of his PTSD and/ or psychoactive substance abuse.
On the basis of his own evidence, I am satisfied that in 1972 Mr McClure was what he described as a "chronic drinker". By that expression, I understand him to be a heavy and regular consumer of alcohol. He drank mainly beer during the day but would also drink spirits such as bourbon. The fact that he was a chronic drinker does not of itself lead to the conclusion that his ability to drive was impaired. The effect upon his ability depends upon such matters as the amount of alcohol he consumed and its particular effect upon him. That effect cannot be determined definitively but must be considered on the balance of probabilities.
On the basis of the extract from Synopsis of Psychiatry, I accept that a person affected by alcohol may show behavioural effects such as poor judgement, loquaciousness, mood change, aggression, impaired attention and amnesia. Laboratory findings suggest those behavioural effects are noted when a person's blood level are between 100 and 200mg/dL (Exhibit 2).
During the hearing, I obtained from the internet a copy of the Western Australian Police Service's road safety publication entitled "Alcohol and Driving". The parties were given a copy and reference was made to it during the hearing. The site was last modified on 6 August, 1998. The publication states that, "While any alcohol will impair your driving, going over 0.05 blood alcohol concentration (BAC), the national legal limit, doubles your risk of an accident than if you hadn't been drinking at all."
The publication goes on to set out information obtained from the Federal Office of Road Safety ("FORS") explaining how BAC is measured. It:
"… is the amount of alcohol in your body. It is measured in grams of alcohol per 100 millilitres of blood. For example, a measure of 0.05 BAC means your body contains 50 milligrams of alcohol per 100 millilitres of blood. As you drink, your BAC rises, taking 30 minutes to up to two hours after you have stopped drinking to reach its highest concentration (especially if you have eaten at the same time). So although you may not have had a drink for an hour or more, your BAC might still be rising. If you are taking medication, you will need to be especially careful as some medications and drugs, when combined with alcohol, can greatly increase your risk of a crash."
The factors affecting BAC in men are described as including:
"… how much alcohol you drink, the time taken to consume drinks, type of drinks consumed, how much you weigh, how long since you have eaten, whether you are fit, the state of your liver and whether you are a regular drinker."
Drivers are advised that they can stay under 0.05 BAC by counting the number of standard drinks they consume. Men are advised to drink no more than two standard drinks in the first hour and one standard drink each hour after that. A standard drink contains 10 grams of alcohol. A middy (285ml) of full-strength beer (4.6% alcohol/volume), a glass (100ml) of wine (10-14% alcohol/volume), a glass (60ml) of fortified wine (17-19% alcohol/volume) and one shot (30ml) spirits (37-40% alcohol/volume) is each a standard drink.
On the basis of Mr McClure's evidence, I am satisfied that he drank beer between 4.00 and 6.00pm. The precise amount is impossible to determine on the evidence. There is no evidence that he drank between 6.00pm and 8.00 or 9.00pm when I find he went to the party. I am satisfied that he drank the whole of the half of the 26 fluid ounce bottle of bourbon that had been consumed, I find that he would have drunk the equivalent of 12.3 standard drinks (i.e. ½ (26fl oz x 28.4ml) ÷ 30ml) during the course of the evening. The fact that he mixed his bourbon (which I have assumed to have an alcohol/volume ration of 37-40%) with Coca Cola makes no difference to his consumption of alcohol.
On the basis of the hospital notes, I find that the accident occurred shortly before 3.30am. In light of that and on the basis of Mr McClure's evidence that he only had a short distance to drive, I find that he left the party some time after 3.00am. Assuming that Mr McClure began to drink on his arrival at 9.00 pm and drank steadily until approximately 3.00am, that bourbon is the only alcohol to which regard need be had and Mr McClure's BAC rises and falls strictly in accordance with the FORS' guide, I am satisfied that his BAC at the time of the accident would have exceeded 0.05.
The fact that he would have exceeded 0.05 BAC if all of the assumed circumstances prevailed is indicative only of his condition at the time of the accident. There is no medical evidence in this case as to whether Mr McClure would have exceeded 0.05. FORS refers to various factors in its publication as factors affecting BAC. No evidence was given as to the likely effect of those factors on Mr McClure's BAC. He certainly met one of those factors in that I have already found that he was a regular drinker.
That is not an end of the matter, however. There is no evidence as to how much beer Mr McClure drank at the beer garden in the afternoon. It follows that, while I cannot be satisfied that he did not have a BAC after his visit to the beer garden and before he left for the party, equally, I cannot be satisfied that his BAC had not returned to zero by the time he left for the party. It follows that the only alcohol having an effect upon him would have been the bourbon. It must also be remembered that I am not assessing what amounts to a "serious default" by reference to the state of knowledge in 2000 but by reference to that in 1972. In 1972, a national legal limit of 0.05 had not been imposed and nor had that of 0.08 which prevailed in some States.
That is not to say that a person could drink alcohol and/or take drugs and drive with impunity in 1972. At that time it was, and it remains, an offence to drive a motor vehicle "whilst under the influence of liquor or a drug (s. 16, Traffic Act 1949). Conviction for that offence exposed a person to a penalty not exceeding 28 penalty units or to imprisonment for a term not exceeding nine months. In determining whether a person had committed that offence, there would need to be evidence directed to whether the person was "under the influence of liquor or a drug" at the time. That evidence would include evidence in relation to matters such as the person's observed behaviour at the time, his speech and appearance at the time as well as the manner of his driving. It would also include evidence as to the amount of alcohol consumed and might well include medical evidence as to the likely effect of the consumption of that amount of alcohol upon a person of a build and with health and a drinking history similar to that of the accused person. Issues such as these were considered relevant by Debelle J in considering whether a person had driven "whilst under the influence of liquor" contrary to s. 47 of the Road Traffic Act 1961 (SA) (Doyle v Rowbottom, [1991] SASC 2747, 8 March, 1991).
In this case, there is no evidence of this nature. The only contemporaneous evidence is that of the hospital notes and they do not contain any relevant material. Efforts were made by Mr McClure's solicitors to obtain the police report relating to the accident but those records had been destroyed. Taking into account the lack of relevant evidence, I am not satisfied that Mr McClure would have been driving his motor vehicle under the influence of alcohol. Similarly, apart from the fact that he smoked some cannabis, there is no evidence upon which I am satisfied that he was driving under the influence of a drug.
If alcohol and drugs were the only issues to consider, I would not be satisfied that Mr McClure's driving home in the circumstances represented a failure to fulfil his obligation to maintain control of his motor vehicle. It would not represent a serious default. They are not, however, the only issues to consider. I must also consider the whole of the circumstances and that means that I must consider his actions in choosing to drive after he had consumed alcohol and while he was upset after the argument. Those circumstances do not include his knowing that he suffered from PTSD or psychoactive substance abuse for there is no evidence that he was aware in 1972 that he suffered from those conditions or that he had received treatment for them. They do include his being aware that he could get confused about the correct side of the road on which to drive.
Having regard to those circumstances, Mr McClure might be thought to be unwise to drive when he was upset after an accident. That is somewhat short of saying that he was in serious default. There is no evidence that his driving had been anything other than appropriate before the accident. There is no evidence to suggest that he should have known that his driving was likely to be impaired on that particular occasion. There is no evidence that his being confused at times about the correct side of the road had ever resulted in his being unable to steer a safe course on the road in the past. I am not satisfied that he was in serious default in choosing to drive home a short distance when he was angry and there is no evidence to suggest that Mr McClure was under the influence of alcohol or drugs.
In any event, the accident did not result from any incapacity to drive on the night per se but from the disorientation and confusion caused by his PTSD. Accepting as I do that Mr McClure thought that he was in Vietnam, it was the effect of his becoming disoriented and thinking that he was in Vietnam, and so required to drive on the right hand side of the road, that was the ultimate cause of his having the accident. I am satisfied that his disorientation, and subsequent despair, were symptoms of his PTSD. That he suffered from that condition was not a matter over which he had any control. In view of the lack of evidence to suggest that he knew that he was suffering from PTSD at the time or that he had any reason to consider that his driving was likely to be impaired, I am not satisfied that his choosing to drive in those circumstances and driving as he did amounts to a serious default.
It follows that I do not consider Mr McClure's cervical-spondylosis "resulted from … [his] serious default" as that expression is used in s. 9(4) of the Act. Therefore, for the reasons I have given, I:
1.set aside the decision of the respondent dated 11 September, 1998 and affirmed by a decision of the Veterans' Review Board dated 8 February, 1999; and
2.substitute a decision that the applicant's cervical-spondylosis is a war-caused disease within the meaning of s. 9 of the Veterans' Entitlements Act 1986.
I certify that the fifty two preceding paragraphs are a true copy of the reasons for the decision herein of Miss S A Forgie (Deputy President)
Signed: .....................................
M Martinez AssociateDate of Hearing 2 March, 2000
Date of Decision 14 April, 2000
Counsel for the Applicant Mr D O'Gorman
Solicitor for the Applicant Gilshennan & Luton
Counsel for the Respondent Miss E Ford
Solicitor for the Respondent Australian Government Solicitor
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