Molyneux and Repatriation Commission
[2001] AATA 3
•8 January 2001
DECISION AND REASONS FOR DECISION [2001] AATA 3
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/1746
VETERANS' APPEALS DIVISION )
Re FLORENCE MOLYNEUX
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Rear Admiral A R Horton AO, Member
Date8 January 2001
PlaceSydney
Decision The Tribunal sets aside the decision under review and in substitution therefor decides that: (1) the condition of alcohol dependence or alcohol abuse in Timothy Molyneux was war-caused; and
(2) the Applicant is eligible to receive a war widow's pension, the date of effect being 25 October 1998.
[Sgd] A R Horton
Member
CATCHWORDS
VETERANS' AFFAIRS – widow's pension – whether death of applicant's husband was war caused – operational service – Statement of Principles concerning Alcohol Dependence or Alcohol Abuse - whether veteran suffered severe stressor (Factor 5(b)) - whether alcohol dependence or abuse related to war service – whether alcohol dependence or abuse related to cause of death – standard of proof
Veterans' Entitlements Act 1986 - ss 6,8,14,120(1), 120(3) 120A,196B
Statement of Principles No 76 of 1998
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Cooke (1998) 28 AAR 400
Repatriation Commission v Gosewinckel [1999] FCA 1273
Dixon v Repatriation Commission (1999) 29 AAR 235
Connors v Repatriation Commission (2000) 59 ALD 61
Re Robertson and Repatriation Commission (AAT 12666, 2 March 1998)
REASONS FOR DECISION
Rear Admiral AR Horton AO, Member
This is an application for review of a decision dated 28 January 1999 by a delegate of the Repatriation Commission ("the Respondent"), and affirmed by the Veterans' Review Board ("the VRB") under section 139 of the Veterans' Entitlements Act 1986 ("the Act") on 28 October 1999, that the death of Timothy Molyneux ("the veteran") was not war caused, and hence Florence Molyneux ("the Applicant") is not eligible for a war widow's pension pursuant to section 14 of the Act. The Applicant lodged an application for review by the Administrative Appeals Tribunal ("the Tribunal") on 17 November 1999.
At the hearing before the Tribunal on 9 November 2000, the Applicant was represented by Mr M Vincent of Counsel. Mrs M Doggett appeared as Advocate for the Respondent. The Applicant gave oral evidence.
The Tribunal had before it the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"), including supplementary pages 20a to 20o, provided from the veteran's pension file. The Tribunal also took into evidence the following:
Exhibit Description Exhibit No.
Statement by Florence Molyneux dated 6 May 2000. Exhibit A1
Statement of David Eagleson dated 31 May 2000. Exhibit A2
Report by Dr A Dinnen, consultant psychiatrist, dated 29 June 2000. Exhibit A3
VRB Decision and Reasons dated 28 October 1999, as annotated by Florence Molyneux. Exhibit A4
Statement by Florence Molyneux undated and unsigned. Exhibit A5
Transcript of VRB hearing on 28 October 1999 (less the record of telephone conversation with the Applicant, Florence Molyneux) Exhibit R1
Report by Dr A P McClure, consultant psychiatrist, dated 28 April 2000. Exhibit R2
Balmain Hospital clinical notes in respect of Timothy Molyneux. Exhibit R3
ISSUES BEFORE THE TRIBUNAL
The veteran, Timothy Molyneux, died on 9 December 1991, the cause of death being certified as Cardiac Arrest. Last illnesses were recorded as right hemiparesis, right knee contractions and post traumatic subdural haematoma, all pre dated to 1964. The Applicant claims war widow's pension pursuant to section 14 of the Act. The circumstances in which the death of a veteran shall be taken to have been war caused are at section 8 of the Act.
The veteran served in the Australian Army from 23 March 1942 until 1 November 1945, this being eligible war service as defined in the Act. As he served overseas, the whole of his service constitutes operational service pursuant to section 6 of the Act.Section 120 of the Act refers to standards of proof, and provides, relevantly:
"(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
...
In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
that the injury was a war caused injury or a defence-caused injury;
that the disease was a war-caused disease or a defence- caused disease; or
that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction."
Section 120A, which applies to sections 120(1) and (3), refers to the reasonableness of an hypothesis to be assessed by reference to Statement of Principles. It relevantly states:
"(1)This section applies to any of the following claims made on or after 1 June 1994:
a claim under Part II that relates to the operational service rendered by a veteran:
…
For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
a Statement of Principles determined under subsection 196B(2) or (11); or
A determination by the Commission under subsection 180A(2);
that upholds the hypothesis."
The Statement of Principles ("SoP") upon which this claim is based is Instrument No.76 of 1998. It concerns Alcohol Dependence or Alcohol Abuse, and states, relevantly:
"2.
…
(b) "alcohol dependence" means the presence of a constellation of cognitive, behavioural and physiological symptoms indicating the use of alcohol despite significant alcohol-related problems. The pattern of repeated self administration may result in tolerance, withdrawal and compulsive alcohol use behaviour.
…
"alcohol abuse" means the presence of cognitive, behavioural or physiological symptoms indicating the use of alcohol despite significant alcohol-related problems, however these symptoms have never met the criteria for alcohol dependence. Additionally, signs of tolerance or withdrawal are absent.
…
Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person's relevant service are:
…
experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or
…
8. For the purposes of this Statement of Principles
"death from alcohol dependence or alcohol abuse" in relation to a person includes death from a terminal event or condition that was contributed to by the person's alcohol dependence or alcohol abuse;
…"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.
…"
The Applicant seeks to relate a fall by the veteran in 1964, after which he was hospitalised for the remainder of his life, to alcohol dependence or abuse arising from a severe stressor experienced during his war service. The Respondent conceded that the veteran's cause of death "was at least partly attributable to his alcohol consumption", that the veteran was suffering from alcohol dependence, as defined in the SoPs, at the time of his fall, and that he experienced a "severe stressor" during his overseas operational service. However, the Respondent contends that the onset of the veteran's alcohol dependence was not within two years of experiencing the severe stressor, and hence the veteran does not meet the conditions of SoP 76 of 1998, Factor 5(b).
FACTS AND EVIDENCE
The veteran enlisted in the Australian Army in March 1942. Following initial training, he travelled from Brisbane to Port Moresby via Townsville onboard the SS Egbert Benson, joining the 2/33 Infantry Battalion on 7 December 1942 (Service and Casualty Form at T3), and returning to Australia with the battalion in April 1944. From the record, he remained with that unit until about September 1945. On a number of occasions during his service with 2/33 Battalion, the veteran was hospitalised for illnesses, including malaria.
Evidence of the veteran's war service was given by Mr David Eagleson in a statement to the VRB (T9, pp45-46, Exhibit A2). Mr Eagleson stated that he met the veteran during initial training at Dubbo and Bathurst, and they both joined 2/33 Battalion. His evidence as to the movements of the battalion varied from that recorded for the veteran, in that he stated that whilst the unit deployed to New Guinea in late 1942, no action eventuated at that time, the unit returning to the Atherton Tablelands for training, before returning to New Guinea in mid 1943 for what was to be the battle of Lae. In the view of the Tribunal, nothing hangs on the inconsistencies in those dates.
Mr Eagleson gave no evidence in respect of actions subsequently fought by the battalion, and B Company (in which he and the veteran served) in particular, stating that he was severely wounded at Edward's Plantation in September 1943 and returned to Australia. Thus he was not in a position to comment on the activities of the veteran during his further service in New Guinea, but the Tribunal notes from historical records that 2/33 Battalion continued in action against Japanese forces. Mr Eagleson does however refer to the effect on the battalion of the crash by a Liberator bomber at Port Moresby (confirmed by historical records) on 7 September 1943 when the battalion was being airlifted to Nadzab for the attack on Lae; some 60 members of D Company (and 158 General Transport Company) were killed in the accident. He states 'this was an extremely tragic incident which had a traumatic effect on the remainder of the battalion, and also meant that we had to go into action one company short'.
The Applicant first met the veteran on 25 April, 1946 at the home of her aunt in Sydney, where he resided. They subsequently started going out together, and commenced living together a couple of months later. At the time, the Applicant was married to, but separated from, a third person. The veteran worked for the Applicant's uncle at a timber yard in Rozelle.
At Exhibit A1, the Applicant described the veteran's condition at their first meeting as 'he was drunk to the point of inebriation. I could tell he was drunk by the way he was acting. He staggered and could not keep his balance. His speech was also slurred.' She went on to state that her husband had a 'heavy drinking problem from the time we first met, and it got worse over the period of his life'. She further stated that he had a very established drinking pattern, going to the hotel (Welcome Hotel at Rozelle) every day after work from 5 pm until closing, and bringing home a couple of bottles of beer each evening. She clarified for the Tribunal paragraph 10 of her statement to the effect that her husband finished work on Fridays at 12 noon, when he would go directly to the hotel; she said that 'I hardly ever saw him on the weekends as he was always at the pub'.
In her undated statement at Exhibit A5, the Applicant expressed concern at some evidence attributed to her in the Decision and Reasons of the VRB ( Exhibit A4). She annotated the copy of that decision as forwarded to her and in examination in chief, stated that she thought she had made such annotations and written Exhibit A5, on receipt of the document and not in the presence of any other person. The Applicant gave evidence to the VRB by telephone; she states at Exhibit A5 that the VRB 'got it all wrong. They never gave me time to answer properly and they were talking two at the same time', and in oral evidence re-affirmed this view. The transcript of the VRB decision does not contain a transcript of the Board's telephone discussion with the Applicant. The points with which she took issue are summarised as stating that she first met the veteran in 1947 (and not 1946 as given in evidence to the Tribunal), that the description of his drinking habits was not in accordance with the evidence she gave, and that the injury leading to the hospitalisation of the veteran in Balmain Hospital is recorded as 1984, when in fact it occurred in 1964.
Reverting to Exhibit A1 and oral evidence, the Applicant stated that her husband would often leave home during the night to go drinking with mates. Whilst she frequently warned him about his drinking, he did not believe he had a problem. He made no attempt to control his drinking. His social life consisted only of drinking with his mates at the hotel. When not drinking he was moody; he did not like to speak of his wartime experiences. He had no recreational activities. When drunk, which she considered to be virtually every day, he became aggressive. The Applicant stated that her husband would on occasions be detained by the police for drunkenness and violence.
In time, the veteran apparently lost his job due to his drinking habits. The Applicant described the circumstances thus:
"Within approximately six months after I started living with my husband, (late 1946/early 1947 on the Applicants' evidence), his drinking habits began to affect his work. He worked as wood turner and soon began taking days of absence so he could drink or so that he could recover from heavy drinking the night before. It soon got to the stage that my husband could not work at all and lost his job. Following this, my husband never worked again. He would often lie about where he was going and indicate to me he was going to work. I did not know until his boss would chase me to find out where he was, that he had not gone to work but had gone drinking at the pub."
(Exhibit A1)
Further evidence in respect of the drinking habits of the veteran are at page 6 of form D2663 in respect of the Applicant's claim (T4), which purports to be a statement from the Applicant, and generally accords with the evidence given by the Applicant to the Tribunal. This statement is in the form of a typed insert on a handwritten form; the Applicant was unable to state who might have typed the insert, and accordingly the Tribunal treats this statement with reservations.
In his statement to the VRB at pages 45 and 46 of the T documents, Mr Eagleson described the veteran's drinking habits during service as:"Like most young men in the Army, he greatly enjoyed the companionship of his mates and always looked to forward to having a drink with them when that was available. In this way he was responding to an amenity which was available in an otherwise socially restrictive camp life. However, in my observation he did not drink any more or less than the group with whom he was most closely associated."
In the absence of oral evidence from the witness, the Tribunal assumes that the observations of Mr Eagleson covered the period from enlistment until Mr Eagleson returned to Australia in September 1943, albeit that he may have observed Mr Molyneux on occasions after the latter had returned to Australia in 1944.
At Exhibit A2, Mr Eagleson, who married the sister of the veteran after service, states that he reduced his visits to the Molyneuxs from about 1947 because of the veteran's heavy drinking problem. He states that "it was apparent to me that from his discharge, the veteran was a heavy drinker" and "it was very clear to me that from the first time I met Mr Molyneux in 1942 to the immediate post war years, the veteran was drinking far more heavily than when I first him." In terms of the veteran's disposition, Mr Eagleson stated:
"During service, I knew Mr Molyneux to be a friendly and sociable man who liked to have a good joke. Upon returning from service, there was a noticeable difference in his personality. He had become an edgy and cranky man who was much more easily upset than when I first met him."
MEDICAL EVIDENCE
The veteran fell down stairs in September 1964 and was admitted unconscious to Balmain Hospital, clinical notes being at Exhibit R3. The ambulance crew report noted that he "had been drinking last night. Friends heard a fall downstairs. No one bothered to do anything. Patient unconscious this a.m. Ambulance to casualty about 12 noon." He remained unconscious for many weeks, and underwent subdural haematoma and tracheostomy procedures at Royal North Shore Hospital. In due course he was transferred via a hospice to a long stay ward at Lidcombe Hospital, where he remained until his death on 9 December 1991. The Death Certificate (T5) gives the cause of death as Cardiac Arrest, with last illnesses being right hemiparesis, right knee contractions and post traumatic subdural haematoma, all of 27 years duration. Other than the reference to falling whilst or after drinking, there is no reference to drinking habits in the clinical notes.
Dr A P McClure, Consultant Psychiatrist, provided a report for the Respondent at Exhibit R2. The Applicant confirmed that her husband rarely talked about his war service, other than speaking of "aeroplanes" and 'Nadzab'; she also recalled him saying that he and his colleagues had been in "mud and water…up to their waists…for three days". Dr McClure was informed by the Applicant that she had met the veteran in 1946, and that they married in 1949. He states that she said she "didn't want to marry him, but had few options, given her pregnancy". Her description of her husband's drinking habits accorded with that given to the Tribunal. She also indicated to Dr McClure that she had made several attempts to leave her husband, "a violent drunk", and that they had been separated for some nine months when he had his fall.
Dr McClure gave his opinion that it was not possible to ascertain "what, if any, stressors affected Mr Molyneux during and after his war service". Nor, in the opinion of Dr McClure, could the Applicant provide detail of the duration and level of the veteran's alcohol consumption over the years. He suggested some unreliability of memory in the Applicant, and also noted the information included in a pension claim medical at the Prince of Wales Hospital in April 1947, that the veteran's use of alcohol was moderate. Whilst he considered that the veteran was "almost certainly alcohol dependent" at the time of his injury, his pattern of drinking "does not appear to meet the Statement of Principles". On the balance of probabilities, Dr McClure concluded that whilst the veteran's brain injury may well be related to his alcohol dependence, "this was not service related" and the connection between the injury and death "is at best tenuous".
Dr A Dinnen, consultant psychiatrist, prepared a report for the Applicant (Exhibit A3), based on a telephone interview with the Applicant and review of all relevant documentation. She confirmed that she had frequently warned her husband about his drinking, and indicated that on one occasion he agreed to seek help at Rozelle Psychiatric Hospital, but remained for only one or two days. She confirmed to Dr Dinnen the violent nature of her husband towards her, when drinking. Dr Dinnen found consistency in the statement by the Applicant at Exhibit A1 and the account given him, and found her statement "demonstrated clearly a consistent pattern of alcoholism", particularly in respect of his violence and moody aftermath. He disagreed with Dr McClure's view in respect of some unreliability of the Applicant's memory, considering some variation in responses to be acceptable in the circumstances of recalling detail many years after the events, believing the evidence to be consistent with "the veteran being a very heavy drinker from the time she met him."
Dr Dinnen concluded that from the evidence available, the veteran had "established alcoholism in the immediate post war period." He further gave his opinion that "the fall in 1964 causing brain damage was directly consequent to alcoholism. The particular form of injury, subarachnoid haemorrhage, is classically associated with alcoholism…" He concluded by stating that whilst in his opinion death was attributable to alcoholism, he would defer to the opinion of expert physicians in that field.
SUBMISSIONSCounsel for the Applicant submitted that alcohol dependence or abuse, either being relevant in this matter, had been established as being present in April 1946 when the Applicant first met the veteran. The evidence given by the Applicant and Mr Eagleson was sufficient to show that the veteran's habits met the diagnostic criteria for abuse and dependence in SoP 76 of 1998 in respect of heavy and recurrent use of alcohol, failure to fulfil home and work obligations, apparent need for increased consumption, and personality changes. Counsel relied on the evidence of Mr Eagleson both in terms of confirming a severe stressor, and in the drinking habits of the veteran 'from the time of his discharge in 1945' (Exhibit A2 paragraphs 9-10), relying on the decision in Repatriation Commission v Cooke (1998) 28 AAR 400 to support the contention that the standard of proof was that of reasonable hypothesis pursuant to sections 120(1) and (3) of the Act.
Counsel submitted that Dr McClure unduly placed too much emphasis on the perceived inconsistencies in the evidence of the Applicant in respect of the veteran's drinking habits, whereas the evidence before the Tribunal, including as it did comment by the Applicant on matters referred to by the VRB, was consistent and truthful. Counsel further contested the contention by the Respondent (Facts and Contentions dated 25 July 2000) that the evidence of the Applicant (prior to the hearing) was not credible, and hence greater weight should be given to the 'moderate potus' statement of 9 April 1947 (paragraph 23), the Tribunal being referred to the relevance of Repatriation Commission v Deledio (1998) 83 FCR 82 and Dixon v Repatriation Commission (1999) 29 AAR 235.
The Respondent had conceded (Facts and Contentions) that the veteran had experienced a severe stressor during his war service. In final submission, the advocate for the Respondent further conceded that his service was of the nature that he would have experienced stressors during his overseas service, irrespective of whether that occurred during a single period in New Guinea, or two shorter periods (as given in evidence by Mr Eagleson), the implication being that such stressors could have occurred at various times during his overseas service. The Respondent accordingly submitted that the real issue for determination by the Tribunal was whether the clinical onset of alcohol dependence or alcohol abuse occurred prior to 9 April 1946, that is two years after the veteran returned to Australia from New Guinea, if the conditions of SoP 76 of 1998 Factor 5(b) were to be met.
The Respondent submitted that the standard of proof in this matter is that of balance of probabilities pursuant to section 120(4) of the Act, also relying on the decision in Cooke (supra), and specifically to the comment by the Full Federal Court at 405 in respect of contentions put forward by Counsel for the respondent in that matter, viz:"In our view there are two answers to those contentions…
Secondly, any suggested illogicality disappears when one focuses on the task in hand. In the example given above, the task at hand when deciding the incapacity claim is, initially, whether there is or was a disease. The evidence is far more readily available on that issue (in the main medical evidence one would suppose) than matters of war causation, which involve assessment of events which may have taken place as long ago as half a century. It makes very good sense, in our view, to apply, as s 120(4) of the Act requires, a civil standard of proof to the former question and the more liberal reverse criminal standard of proof to the latter question."
The Respondent referred the Tribunal to Repatriation Commission vGosewinckel (1999) FCA 1273, wherein Weinberg J referred to the Full Federal Court decision in Cooke (supra) at paragraph 36 as follows:
"The Full Court concluded that the history of the legislation indicated that the reasonable hypothesis standard had been introduced in 1986 when the VE Act was enacted solely for the purpose of determining whether an injury, disease or death was war caused. All other matters, including questions of diagnosis, were to be dealt with by the reasonable satisfaction standard in s 120(4)".
The Respondent went on to consider the questions of "what", "when" and "why", concluding that:
"it was clear from both the decisions referred to, looking at the statement of principles and the diagnostic criteria which are required in order to establish clinical onset and commonsense as well, that when clinical onset was, should be determined on the balance of probabilities."
Drawing on the decision by Kenny J in Connors v Repatriation Commission (2000) 59 ALD 61, the Respondent submitted that in this matter, there is no evidence as to the drinking habits of the veteran prior to him meeting the Applicant in April 1946, nor was there was material sufficient to meet the diagnostic criteria in the Statement of Principles. From the evidence of the Applicant, she did not discuss the veteran's habits prior to meeting him with the veteran himself or his relatives, and the statements by Mr Eagleson at T9 and Exhibit A2 did not assist in clarifying the situation prior to 1946, noting that in the former document, Mr Eagleson stated, "However, in my observation, he did not drink any more or less than the group with whom he was most closely associated." The Tribunal assumes this statement refers to the period when they were together during the war.
As regards the opinion of Dr Dinnen, the Respondent submitted that it was based on insufficient evidence as to the veteran's level of drinking. The Respondent concluded:
"because there is no material that points to that essential feature of the hypothesis that the stressful event occurred within two years of the clinical onset, that hypothesis has not been raised because it does not fit within the template of the Statement of Principles and that therefore, the issue of whether or not the hypothesis has been proved beyond reasonable doubt does not arise."
In response, Counsel for the Applicant attributed the previously quoted passage at 405 from Cooke (supra) as bearing out the correctness of the Applicant's position, and that the question of onset in respect of relevance to service was a matter for consideration under the reasonable doubt test and hypothesis. As regards Connors (supra), Counsel saw that decision as having no direct relevance, unlike the High Court decision in Byrnes v Repatriation Commission (1993) 177 CLR 564. In respect of the evidence of Mr Eagleson, Counsel drew the attention of the Tribunal to part of his statement at Exhibit A2 and at T9 (folio 46) where in the latter he states:
"I am not medically qualified to say whether the change in his personality and his overuse of alcohol was due to the conditions of his war service. What I do know, is that Tim underwent a great change from the time I first met him in 1942 to the immediate post war years and he was drinking far more heavily than when I first met him…"
ANALYSIS OF EVIDENCE AND FINDINGS
In considering the relevant standards of proof in this matter, their Honours (French, Drummond and Carr JJ) in Cooke (supra), stated at 403:
"We think it is quite clear that the issue whether a disease exists, is to be decided to the reasonable satisfaction of the Commission. In other words, s 120(1) and (3) assume the present existence of a relevant condition, in this case a disease. Section 120(1) specifies the standard of proof for the determination whether or not that disease relates to the operational service rendered by the veteran. Section 120(3) provides for one situation in which that standard is to be taken as having been satisfied. The work of each subsection is to provide the standard of proof for establishing a causal connection between disease and service."
As noted at paragraph 29 above, their Honours went on to say at 405:
"….First the language of s 120(1) and (3) is so clear as to not raise any doubts on the point. Secondly, any suggested illogicality disappears when one focuses on the task in hand. In the example given above, the task at hand when deciding the incapacity claim is, initially, whether there is or was disease. The evidence is far more readily available on that issue (in the main medical evidence one would suppose) than matters of war causation whish involve assessment of events which may have taken place as long ago as half a century."
The Respondent conceded that the veteran's cause of death was a least partly attributable to his alcohol consumption, and that the veteran was suffering from alcohol dependence pursuant to SoP 76 of 1998 at the time of his fall in 1964. Observing that both doctors opined that the veteran was alcohol dependent at the time of his injury, and following the reasoning in Cooke (supra), which was followed in Gosewinckel (supra), the diagnosis of alcohol dependence or alcohol abuse is established to the reasonable satisfaction of the Tribunal pursuant to section 120(4) of the Act. Following that same reasoning, and taking account of the reasoning and decision in respect of the standard of proof assumed in Re Robertson and Repatriation Commission (AAT 12666, 2 March 1998), wherein the matter of identification of the onset of the disease or injury is relevant to the circumstances in this matter, the standard of proof required to establish a causal relationship between the condition of alcohol dependence or abuse and service is that pursuant to sections 120(1) and (3).
The requirements of section 120(1) and (3) were authoritatively addressed by Mason CJ, Gaudron and McHugh JJ at 571 in Byrnes (supra):"The position may be summarised as follows: (1) First, sub-s (3) of s.120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not an issue at this point. (2) If a reasonable hypothesis is established, sub-s (1) of s.120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis., is proved beyond reasonable doubt, thus disproving beyond reasonable doubt, the hypothesis."
The High Court (Mason CJ, Deane and McHugh JJ) also said in Bushell vRepatriation Commission (1992) 175 CLR 408 at 414, as followed in Connors (supra):
"The material will raise a reasonable hypothesis within the meaning of s 120(3) if the material points to some fact or facts (the raised facts) which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true."
Section 120A(3) of the Act is relevant in that a Statement of Principles (No 76 of 1998) is in force. In that respect, the Full Federal Court in Deledio (supra) stated at 97 the course that the Tribunal is to take, thus:
"…
If an SoP is in force, the Tribunal must then form an opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the 'template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by s 196B(2)(d) and (e)). If the hypothesis does contain those factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be reasonable and the claim will fail.
The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war caused…If not so satisfied, the claim must succeed. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved."
The material before the Tribunal must point to the hypothesis. It does this by dint of the concession by the Respondent that the veteran was alcohol dependent at the time of his injury in 1964 and that he suffered a severe stressor, at least, during his war service, and by the evidence that supports the contention that he was drinking heavily following his war service. The Tribunal is satisfied beyond reasonable doubt that the hypothesis is consistent with the "template" in SoP 76 of 1998, in that it contains Factor 5b, the experience of a severe stressor (as defined in paragraph 8), which therefore relates to war service subject to whether the hypothesis is supported by the facts pursuant to section 120(1) of the Act.
Notwithstanding an alternate date recorded by the VRB, the Tribunal accepts the evidence of the Applicant that she first met the veteran on 25 April 1946. Her evidence is that on that occasion he was "drunk". She states that he "had a heavy drinking problem from the time we first met, and it got worse over the whole period of his life". Her direct knowledge of the veteran's drinking habits thus post dates the "end date" for clinical onset of alcohol dependence or abuse conceded by the Respondent (9 April 1946) by some 16 days. She is unable to offer evidence of the veteran's drinking prior to that first meeting, but gave evidence that at that time he had an established drinking pattern, going to the hotel every day after work. Within a "couple of months", when she commenced living with him, she was able to observe that he brought home bottled beer after the hotel shut, and "was always at the pub at weekends" stating "I hardly ever saw him". In due course he lost his job at the timber yard due to his unreliability and drinking.
The evidence of Mr Eagleson is able to throw some light on the veteran's drinking habits prior to April 1946. He met the veteran in 1942 during army training, and was with him in New Guinea in the 2/33 Battalion until being wounded and repatriated in September 1943. It is unclear whether, and if so how often, he saw the veteran from that time until the end of the war in August 1945, but he states at paragraph 9 of exhibit A2 that in respect of the veteran's drinking, he saw him "from the time of his discharge in 1945". Observing that the veteran returned from New Guinea in April 1944, and that his sister married Mr Eagleson, it can be assumed that he saw Mr Eagleson in the intervening period. Mr Eagleson further stated that "from the time of his discharge, Mr Molyneux was a heavy drinker. On our visits to the local club, Mr Molyneux would drink at least 5 or 6 schooners" (Exhibit A2) and at T9 he refers to both personality change and "drinking far more heavily in post war years."
As regards personality changes in the veteran, the Applicant gave evidence as to the moodiness and aggression of her husband, and the absence of any social life other than drinking with his mates, these observations referring to the period after April 1946. Mr Eagleson gives more contemporary evidence for the period in question, stating at T9:"In the post war years, I noticed a distinct change in Tim. His normally friendly manner had changed…he was sometimes aggressive in his attitude. His whole personality appeared to have darkened."
Mr Eagleson was not called for cross examination by the Respondent, and the Tribunal accepts his evidence as reflecting the situation as he saw it some 55 years ago. Mr Eagleson states in his evidence in Exhibit A2 that he saw the veteran approximately once a year and because of the excess drinking by the veteran, "I tried to cut down on my visits". The Respondent submitted that based on a yearly visit only, the veracity of the views of Mr Eagleson must be questioned; the Tribunal accepts that there is a contradiction in the statements by Mr Eagleson as to how often he saw the veteran, but considers it reasonable to assume that the intent by Mr Eagleson was to show that visit frequency reduced in time to about once a year due to the heaviness of the veteran's drinking, and also notes, as earlier referred to, his comment at paragraph 11 of Exhibit A2 that, "from approximately 1947, Mr Molyneux's drinking became so heavy that I tried to cut down on my visits."
In Re Robertson (supra), and following expert evidence as the meaning of clinical onset, the tribunal concluded (paragraph 23) that :
"On that evidence, we consider that there is a clinical onset of a disease, either when a person becomes aware of some feature or symptoms which enable a doctor to say the disease was present at the time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time".
Dr McClure was of the opinion that whilst the veteran was "almost certainly alcohol dependent" at the time of his injury, his pattern of drinking did not appear to meet the SoP because of the time interval in development in relation to his war service. He referred to inconsistencies in the evidence of the Applicant. Dr Dinnen, on the other hand, found the Applicant's statements and detail given at telephone interview to be consistent and demonstrating "a consistent pattern of alcoholism in the post war period". On the information given him, he opined that the veteran was a heavy drinker at the time he met the Applicant. The Tribunal is inclined to the opinion of Dr Dinnen on the evidence subsequently given by the Applicant as regards the condition of the veteran in the immediate post war period. The entry "moderate potus" in the pension claim completed by medical staff at the Prince of Wales Hospital is accorded little weight, being completed by the examining doctor and possibly reflecting a response from the veteran who was not prepared to concede he had a drinking problem (Applicant's statement at paragraph 16).
On the evidence, the Tribunal is satisfied, beyond reasonable doubt, that the veteran exhibited a pattern of alcohol use, as defined in the diagnostic criteria in paragraph 2 of SoP 76 of 1998 in terms of alcohol abuse and probably alcohol dependence within the two year period from the date of 9 April 1944 as conceded by the Respondent. This was manifested in a need for markedly increased amounts of alcohol to achieve intoxication or the desired effect, time spent on alcohol related activities, the reduction in wider social activities and continued alcohol use leading to social or interpersonal problems.
The hypothesis is therefore a reasonable hypothesis. The Tribunal cannot be satisfied beyond reasonable doubt that the death of the veteran did not arise from a war-caused alcohol dependence or abuse, and hence the claim of the Applicant must succeed.
The decision under review is set aside, and in substitution the Tribunal decides that the death of the veteran was war-caused and hence the Applicant is entitled to a war widow's pension pursuant to section 14 of the Act.
I certify that the forty seven (47) preceding paragraphs are a true copy of the reasons for the decision herein of:
Rear Admiral A R Horton AO, Member
Signed: .....................................................................................
AssociateDates of Hearing 9 November 2000
Date of Decision 8 January 2001
Counsel for Applicant Mr M Vincent
Advocate for the Respondent Ms M Doggett
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