Musgrave and Repatriation Commission

[2003] AATA 1213

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1213

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No N2002/808

VETERANS' APPEALS  DIVISION		)
Re		JOHN MUSGRAVE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms N Bell, Member

Date3 December 2003

PlaceSydney

Decision The Tribunal sets aside the decision under review and in substitution therefor determines that the Applicant’s cerebral ischaemia is war caused.

[sgd] N Bell
  Member

CATCHWORDS

VETERANS’ AFFAIRS – whether the condition of cerebral ischaemia is war-caused – whether Statements of Principles met – whether cerebral ischaemia – consumption of alcohol – whether diagnosis correct – decision set aside.

LEGISLATION

Veterans’ Entitlements Act 1986

Statement of Principles:

Instrument No 52 of 1999 concerning Cerebrovascular Accident

CASE LAW

Arnott v Repatriation Commission (2001) 63 ALD 175

Bull v Repatriation Commission (2001) 66 ALD 271

Harris v Reptriation Commission (2000) 62 ALD 174

Repatriation Commission v Deledio (1998) 49 ALD 193

Repatriation Commision v Law (1980) 31 ALR 140

REASONS FOR DECISION

3 December 2003        Ms N Bell, Member     

1.       This is an application by Mr John Musgrave ("the Applicant") for review of the decision of the Repatriation Commission ("the Respondent") dated 2 October 2001 to refuse his claim for cerebral ischaemia, hypertension, alcohol dependence or alcohol abuse and gastro-oesophageal reflux disease. The Applicant indicated to the Tribunal that he is only pursuing his claim for cerebral ischaemia and is content for the decisions concerning the other conditions named above to be affirmed.

2.       The Applicant claimed in relation to the above conditions on 21 February 2001. The Respondent's decision to refuse his claim was affirmed by the Veterans' Review Board on 10 May 2002.

3.       At the hearing before the Tribunal the Applicant was represented by Mr Brian Winship, solicitor and the Respondent was represented by Mr Peter Godwin, advocate. The Applicant and the Applicant's wife gave oral evidence to the Tribunal and the Tribunal had before it the following documentary evidence:

Exhibit No	Description	Date
TD1	Documents pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
A1	Applicant's Statement of Facts and Contentions	27 February 2003
R1	Respondent's Statement of Facts and Contentions	7 May 2003
R2	Applicant's record of service	28 October 2002
R3	Applicant's medical records	5 November 2002
R4	Writeway Research report	13 March 2003
R5	Medical report of Professor Mattick	18 October 2002
R6	Clinical notes of Dr Nanette Tellis
R7	Copy of birth certificate of Cheryl Musgrove

background

4.       The Applicant served in the Royal Australian Navy from 23 April 1954 to 22 April 1963. He was posted to the HMAS Quiberon from 6 January 1958 to 5 July 1959 and to the HMAS Parramatta from 5 March 1962 to 21 October 1962.

5.       There is no dispute that the Applicant had operational service on the Quiberon for the following periods:

17 March 1958 to 3 April 1958

13 August 1958 to 5 September 1958

20 November 1958 to 23 January 1959

27 January 1959 to 1 March 1959

1 March 1959 to 28 April 1959.

6.       It is also not in dispute that the Applicant had operational service on the Parramatta for the following periods:

21 June 1962 to 23 August 1962

9 May 1963 to 18 May 1963.

7.       There is also no dispute that the Applicant has cerebrovascular disease with clinical onset on 18 June 1999. In addition there is no dispute that in the year preceding the onset of the Applicant's cerebrovascular disease, the Applicant's alcohol consumption was at least 250 grams per week.

issues

8.       The issue for the Tribunal to consider is whether the Applicant's cerebrovascular disease is war-caused. Section 9 of the Veterans’ Entitlements Act 1986  (“the Act”) provides:

“9  War-caused injuries or diseases

(1)       Subject to this section, for the purposes of this Act, an injury suffered                   by a veteran shall be taken to be a war-caused injury, or a disease  contracted by a veteran shall be taken to be a war-caused disease, if:

(a)       the injury suffered, or disease contracted, by the veteran   resulted from an occurrence that happened while the veteran   was rendering operational service;

(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered  by the veteran;

(c)       the injury suffered, or disease contracted, by the veteran   resulted from an accident that occurred while the veteran was                   travelling, while rendering eligible war service but otherwise               than in the course of duty, on a journey to a place for the   purpose of performing duty or away from a place of duty upon              having ceased to perform duty;

(d)the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war-caused injury or a war-caused disease;

(e)       the injury suffered, or disease contracted, by the veteran:

(i)        was suffered or contracted while the veteran was   rendering eligible war service, but did not arise out of   that service; or

(ii)       was suffered or contracted before the commencement   of the period, or last period, of eligible war service   rendered by the veteran, but not while the veteran was   rendering eligible war service;

and, in the opinion of the Commission, the injury or disease   was contributed to in a material degree by, or was aggravated   by, any eligible war service rendered by the veteran, being   service rendered after the veteran suffered that injury or   contracted that disease;

but not otherwise.”

9. Section 120 of the Act (set out later in this statement of reasons) sets out the steps required to be taken by the Tribunal in determining whether a disease is war caused and involves reference to any relevant Statements of Principles (“SoP”). The parties are in agreement, and the Tribunal concurs, that the relevant SoP is No 52 of 1999 concerning Cerebrovascular Accident.

10.     The Applicant relies on factor 5 (e) of that SoP which provides:

"regularly consuming an average of 250g/week of alcohol

(contained within alcoholic drinks), for a continuous period of at

least one year immediately before the clinical onset of

cerebrovascular accident…"

11.     The Respondent has conceded this level of consumption of alcohol at that time but contends that the Applicant's alcohol consumption is not related to his service.

12.     There appears, to the Tribunal, to be no other factor in the SoP  relevant to the Applicant's circumstances.

13.     The issue for the Tribunal to consider, therefore, is whether there is material before the Tribunal that points to the Applicant having increased his drinking because of his operational service.

Applicant's evidence

14.     The Applicant told the Tribunal that he is 68 years old and has been retired for many years. He said he was in the Navy from 1954 to 1963, posted to the HMAS Warramunga from 5 April 1957 to 2 May 1957 serving in the Far East Zone and to HMAS Quiberon from Sydney to Jervis Bay from 19 August 1958 to 5 September 1958.

15.     The Applicant said that his first child, Peter, was born on 2 November 1957. In February or March 1958 his wife had a miscarriage while he was at Jervis Bay. The Applicant said that he asked the engineer, working as he was as a stoker in the boiler room, if he could go home and was told "no, there is nothing you can do". The Applicant said that the ship returned to Sydney about one week later and he was most upset that he was not allowed to go home. He said that when he returned to Sydney his wife was back at home and he had leave and visited her.

16.     The Applicant said that the ship stayed in Sydney for about two months and in May of 1958 they sailed to the Far East. The Applicant said that he knew they were going to Singapore and that he would be away for approximately six months. He said he understood that they were there to show the flag and deal with any possible disturbances, like terrorists and pirates. He said that he spent most of his time below decks in the engine room.

17.     The Applicant said that his wife wrote to him in about June 1958 and told him that she was pregnant again, due to deliver in February. He said he was very happy about that and thought he would be back in Sydney by October 1958 and not have to go away again until the next May and so would be there for the birth.

18.     The Applicant said that the HMAS Anzac and HMAS Tobruk were to relieve the crew to allow them to come back in October 1958. However, the Anzac broke down and the Tobruk relieved another ship and so they were forced to stay there.

19.     The Applicant said he learned about this when the Tobruk arrived on its own. He said he was very upset and did not know what would happen, having been looking forward to seeing his baby born. The Applicant said that no other ship arrived to relieve them and that meant they had to stay another six months unless another ship came.  The Applicant said that in early December 1958 they did a small re-fit lasting about three to four weeks in Singapore. They stayed at a British shore depot.

20.     The Applicant said that up to the time he went ashore in Singapore he occasionally had a beer issue of one bottle in the afternoon about twice per week and would sometimes take other peoples’ issue and have three bottles. He said that up to then he had only drunk beer. The Applicant said that when he went ashore to the British shore depot they were given a rum issue, that is, a nip of rum in a mug, and would also take others issue occasionally. The Applicant said he had never drunk spirits before. The Applicant said that also in the depot there was a wet canteen with beer for purchase. He said that he went outside the depot on most days to shop and drink with his mates. He said that he was drinking a bit more than before because he was not very happy about being stuck there when he should have been home for the birth of his child. He said that his drinking was reasonably heavy.

21.     The Applicant said that after the refit was completed they went back on board and from January to April 1959 were sailing around the Far East. The Applicant said that they returned to Sydney at the end of April or the beginning of May 1959 and had been on board the Quiberon for a total of approximately 12 months.

22.     When he returned home to his house in Seven Hills he met his three month old baby, Cheryl Lee Musgrave, who had been born on 6 February 1959 at Fairfield District Hospital.

23.     In cross-examination the Applicant conceded that in Singapore his mates would drink about as much as he did, given that they were also worried about not getting home and were also receiving a rum issue.

24.     The Applicant also conceded that in 1954 he had a motor vehicle accident in which he broke his leg and he had been drinking prior to that accident.

25.     In relation to page 13 of the Exhibit R3, a Navy clinical medical note dated 12 August 1955 which refers to "alcohol plus", the Applicant denied that this indicated he had had too much to drink.

26.     When questioned in relation to the history noted in Professor Mattick's report of 18 October 2002, the Applicant agreed that he had started drinking in about 1952, at the age of 17, while he was doing his national service. He said that he would have generally three or four middies on a Saturday. He said that following his motor vehicle accident he had some beer in the wet canteen at Cerberus. Whilst on the HMAS Sydney during 1955 and 1956 the Applicant would occasionally drink six middies of beer when he went ashore but the Applicant noted that the HMAS Sydney was in Sydney most of the time and he would generally go home.

27.     When referred to page 30 of the T-documents, document T5, the Applicant's claim for disability pension, the Applicant noted that the words "causally related to severe trauma when a mate was killed" in connection with substance abuse by the Applicant were written by Mr John Casey, the Applicant's advocate. The Applicant said that he told Mr Casey about seeing a mate killed and considered that this had contributed to his drinking. The Applicant agreed that he had not told Mr Casey about being away from home at the time of the birth of his child and about this making him upset. But when referred to document T6, a diagnostic report completed by Dr Tellis, the Applicant's general practitioner, at page 41 were the words "excessive use of alcohol also occurred at the same time due to accidental death of a friend" the Applicant agreed that Dr Tellis must have been reporting what he had told her and that he must not have told her about being upset over being away from home.

28.     When referred to document T8, an alcohol questionnaire, at page 61 where at question two the Applicant indicated that he begun drinking alcohol while serving on HMAS Warramunga in 1957, the Applicant agreed that that answer was not correct and that he had in fact begun drinking alcohol at age 17. The Applicant was also referred to his answer in that questionnaire at question four where he indicated that on board the HMAS Warramunga after his mate was killed he started drinking a large bottle or can and used to obtain other bottles or cans from other drinkers and by the time he was posted to HMAS Quiberon in 1958 he was drinking two or three large bottles or cans every day. The Applicant said that was not correct but did not remember saying it.

29.     The Applicant was referred to the report of Dr Karl Koller dated 29 April 2002 at page 84 of the T-documents where Dr Koller states:

"On the "Warramunga", a close mate returning back to the ship and presumably intoxicated fell overboard and was killed. This was a most upsetting incident, which is often reflected on.

In 1954 in Melbourne he was involved in a motor vehicle accident. He walked in front of a speeding car. His left tibia and fibula were fractured and he was in a naval hospital in Melbourne for 8 months. He had been drinking.

He also relates other incidents in the Navy that involved heavy drinking and fighting."

30.     The Applicant agreed that he had not mentioned to Dr Koller the issue of having been kept from home during the birth of his child.

31.     The Applicant was also referred to page 51 of Exhibit R3 in which it is noted that on 13 April 1956 he suffered a laceration to his left eyebrow having been "involved in a brawl ashore". The Applicant said that he had been fighting with a mate and he had had a couple of drinks but his mate had quite a lot to drink.

32.     The Applicant agreed that in 1959 his wife had been in hospital with tuberculosis and that during that time, with the care of his children, he did not drink.

33.     The Applicant said that he currently drinks, over a three-day weekend, 23 cans of beer and that recently at a wake he drank 14 cans. He said that on an average weekend he would drink 12 to 14 cans of beer and during the week he would drink four a day but on Sundays would drink none.

Mrs musgrave's evidence

34.     Mrs Musgrave said she and the Applicant married on 22 June 1957 after knowing each other for six years. She said that the Applicant was not a heavy drinker before their marriage.

35.     Mrs Musgrave confirmed that their first child was born on 7 November 1957 and that in 1958 while the Applicant was on the Quiberon at Jervis Bay she had a miscarriage early in the year. She said her father rang the ship to tell the Applicant to try and come home to be with her but he was not allowed to and she was very upset about this. She confirmed that the Applicant got back to Sydney approximately one week later.

36.     Mrs Musgrave confirmed that the Applicant went back on board the Quiberon and it was allotted for overseas service and sailed out of Sydney in May going to Singapore for an expected six months. She said that about one month later she wrote to the Applicant telling him that she was pregnant and due in February. She said that the Applicant wrote back and said that he was very happy and expected to be home in time for the birth. She said that she later received a letter from the Applicant telling her that he was not coming home for Christmas and did not know how long he would be away for.

37.     Mrs Musgrave said that before sailing in May the Applicant was a moderate drinker, not drinking every day, not drinking at home and would only occasionally get drunk.

38.     Mrs Musgrave said that the Applicant wrote to her about going to a depot because he was doing a re-fit on a ship. She said that the correspondence was just ordinary - nothing special. She said that he came home in May of 1959 and their daughter Cheryl was three months old.

39.     Mrs Musgrave said that when he came home the Applicant was drinking more often than before and would get drunk more often than before. She said that his drinking has increased ever since.

40.     In cross-examination Mrs Musgrave agreed that the Applicant's motor vehicle accident and the death of his friend also contributed to his drinking.

41.     Exhibit R5 is the report of Professor R P Mattick dated 18 October 2002. In that report Professor Mattick said:

"10.2 Lifetime drinking: he drank regularly before operational service.

10.2.1 He commenced drinking at 171/2 years of age, before operational service, consuming three or four middies of beer at a Fairfield hotel on Saturdays.

10.2.2 He was involved in a motor vehicle accident when he was based at           HMAS Cerebus before operational service, and used to go ashore           once a fortnight to consume three or four middies of beer.

10.2.3 On the HMAS Sydney he would drink up to half a dozen middies of           beer and on the HMAS Warramunga one large bottle of beer.

10.2.4 On the HMAS Quiberon he said that he drank "the same…the same         thing…we used to get a beer issue" but did drink at an English Depot out of Singapore consuming two nips of rum at a lunchtime for two      months.

10.2.5 At Quakers Hill he had three or four middies of beer at lunch.

10.2.6 On the HMAS Parramatta he might have had seven or eight middies of      beer sometimes in a bar when he went ashore, two out of three nights   or in the daytime.

10.2.7 At the time of his reported stroke, he was drinking eight standard    drinks per week, which is equivalent to 80 grams of alcohol per week.

10.2.8 The other details of his drinking history have been set out earlier.

…

10.9 In summary, Mr Musgrave has always drunk in a relatively moderate fashion. This is the opinion of some doctors that have examined him. Dr Koller, who reportedly saw him for 30 minutes and asked a number of questions, appears to have reached a different conclusion, I disagree. Dr Telles felt that Mr Musgrave drank excessively but she used an instrument, which does not diagnose alcohol abuse or dependence. Based on the information from both Mr Musgrave and his wife he has never met criteria for any alcohol use disorder, specifically alcohol abuse or alcohol dependence. I do not believe that he has met criteria for any anxiety disorder."

42.     According to the history taken by Professor Mattick, while on the HMAS Warramunga the Applicant "was quite a little affected" by the death of a fellow sailor. There were no unpleasant or nasty events experienced by him on the HMAS Quiberon. Similarly there were no such events, according to the Applicant, on the HMAS Parramatta. In addition the Applicant described to Professor Mattick his drinking on the HMAS Quiberon as being "the same thing" as his drinking on the HMAS Warramunga. He did note, however, that he would have two nips of rum in a mug at lunchtime for two months.

43.     Exhibit R3 is a bundle of documents from Defence Corporate Services and Infrastructure and on page 13 of those documents is a clinical note dated 12 August 1955, which notes the words "alcohol plus". At page 51 of those documents is a further clinical note dated 13 April 1956 in relation to a laceration of the Applicant's left eyebrow following a "brawl ashore".

44.     Document T5 is a claim for Disability Pension completed by the Applicant and at page 30 of those documents, in relation to claimed substance abuse and in answer to the question "Why do you believe your  service caused, contributed to or aggravated this disability?" the following answer is given:

"Causally related to severe trauma when a ship mate was killed on return the ship (HMAS Warramunga)"

45.     Document T6 is a diagnostic report and medical impairment assessment completed by Dr Nanette Tellis on 28 February 2001 and at page 41 of the documents Dr Tellis says:

"Excessive use of alcohol also occurred at the same time due to accidental death of friend."

46.     Document T8 is an alcohol questionnaire completed by the Applicant in which he was asked, "When did you start to drink alcohol?” and he replied "serving on HMAS Warramunga in 1957".  In answer to the question "How much did you drink?" the Applicant said:

"On board HMAS Warramunga after my mate was killed, I started drinking a large bottle or can (26oz) and used to trade for other bottles or canes from non drinkers. By the time was posted to HMAS Quiberon in 1958 I was drinking 2 and 3 large bottles or cans every day."

47.     At page 84 of the T-documents is a report from Dr Karl Koller, psychiatrist, dated 29 April 2002. Dr Koller said:

" He states quite forcibly that it was stressful being in the Navy and away from home. He did not see his daughter till she was 3 months old.

…

On the "Warramunga", a close mate returning back to the ship and presumably intoxicated fell overboard and was killed. This was a most upsetting incident, which is often reflected on.

In 1954 in Melbourne he was involved in a motor vehicle accident. He walked in front of a speeding car. His left tibia and fibula were fractured and he was in a naval hospital in Melbourne for 8 months. He had been drinking.

He also relates other incidents in the Navy that involved heavy drinking and fighting.

…

As mentioned his rationale for heavy drinking was to cope with RAN service and the stress of absence from home.  This continued after he left the service."

consideration

48. Sections 120 and 120A of the Act provide:

Section 120 – Standard of proof

(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or 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.

Note: This subsection is affected by section 120A.

(2)      Where a claim under Part IV:

(a)      in respect of the incapacity from injury or disease of a member of a            Peacekeeping Force or of the death of such a member relates to the           peacekeeping service rendered by the member; or

(b) in respect of the incapacity from injury or disease of a member of the Forces, or of the death of such a member, relates to the hazardous service rendered by the member;

the Commission shall determine that the injury was a defence-caused injury, that the disease was a defence-caused disease or that the death of the member was defence-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

Note 1: For member of a Peacekeeping Force, peacekeeping service, member of the Forces and hazardous service see subsection 5Q(1A).

Note 2: This subsection is affected by section 120A.

(3)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:

(a)      that the injury was a war-caused injury or a defence-caused injury;

(b) that the disease was a war-caused disease or a defence-caused disease; or

(c)      that the death was war-caused 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.

Note: This subsection is affected by section 120A.

(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.

Note: This subsection is affected by section 120B.

(5) Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:

(a) an injury suffered by a person is a war-caused injury or a defence-caused injury;

(b) a disease contracted by a person is a war-caused disease or a defence-caused disease;

(c)         the death of a person is war-caused or defence-caused; or

(d) a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.

(6)Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:

(a) a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or

(b) the Commonwealth, the Department or any other person in relation to such a claim or application;

any onus of proving any matter that is, or might be, relevant to the determination of the claim or application…

120A  Reasonableness of hypothesis to be assessed by reference to Statement of Principles

(1)       This section applies to any of the following claims made on or after 1                    June 1994:

(a)       a claim under Part II that relates to the operational service rendered   by a veteran;

(b)       a claim under Part IV that relates to:

(i)        the peacekeeping service rendered by a member of a Peacekeeping                   Force; or

(ii)       the hazardous service rendered by a member of the Forces.

Note 1: Subsections 120 (1), (2) and (3) are relevant to these claims.         

Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q (1A).

(2)       If the Repatriation Medical Authority has given notice under section 196G that                 it intends to carry out an investigation in respect of a particular kind of injury,   disease or death, the Commission is not to determine a claim in respect of the   incapacity of a person from an injury or disease of that kind, or in respect of a                    death of that kind, unless or until the Authority:

(a)       has determined a Statement of Principles under subsection 196B (2)                    in respect of that kind of injury, disease or death; or

(b)       has declared that it does not propose to make such a Statement of   Principles.

(3)       For the purposes of subsection 120 (3), a hypothesis connecting an I  injury suffered by a person, a disease contracted by a person or the   death of a person with the circumstances of any particular service   rendered by the person is reasonable only if there is in force:

(a)       a Statement of Principles determined under subsection 196B (2) or   (11); or

(b)       a determination of the Commission under subsection 180A (2);

that upholds the hypothesis.

Note:   See subsection (4) about the application of this subsection.

(4)       Subsection (3) does not apply in relation to a claim in respect of the   incapacity from injury or disease, or the death, of a person if the   Authority has neither determined a Statement of Principles under   subsection 196B (2), nor declared that it does not propose to make   such a Statement of Principles, in respect of:

(a)       the kind of injury suffered by the person; or

(b)       the kind of disease contracted by the person; or

(c)       the kind of death met by the person;

as the case may be.

49.     The Full Federal Court in Repatriation Commission v Deledio (1998) 49 ALD 193 at 206, held that there are four steps to be considered in assessing whether an applicant will succeed in his claim that a disability was war-caused.

50.     The first step is to consider whether the material before the Tribunal points to a hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the Applicant.

51.     The second step is to ascertain whether there is a relevant SoP in force. 

52.     The third step is to form an opinion as to whether the hypothesis raised is reasonable.  If the hypothesis is consistent with the template in the SoP it will be reasonable.  The hypothesis raised must contain at least one of the factors in the SoP which the SoP says must exist, and that factor must be related to the Applicant’s service. 

53.     Finn J explained the proper operation of step three in Harris v Repatriation Commission (2000) 62 ALD 174 at 185 in paragraphs 37-40 where he said:

“It is important to bear in mind that the Tribunal, when dealing with stage 3 of Deledio, was concerned not with the proof or disproof of the various SoP factors as such in Mr Harris' case, but with whether material before it was consistent with the existence of those factors, or else properly allowed one or more of them to be assumed, so permitting the SoP to uphold the applicant's hypothesis. Importantly, as Heerey J noted in Deledio (25 AAR 396 at 411), an hypothesis can so be upheld notwithstanding that ‘one of the disputed facts happens also to be a component of an SoP’.

38. In the instant case, it may well have been able to be said that, in light of Dr Stone's evidence, there was material consistent with altered mobility etc that was not overt, and that whether there was altered mobility was itself simply a disputed fact. But even if this were so, it would not justify any different answer to the question the Tribunal ought to have addressed.

39. Bearing in mind that the contentious SoP factor in the present case was whether there were (inter alia) ‘acute signs and symptoms of altered mobility etc’, Dr Stone's evidence was not consistent with, nor did it point to, the existence of this factor. Altered mobility of which a person is unaware (even given the stresses and preoccupations associated with a patrol) cannot be said to be suggestive of an ‘acute sign or symptom’ of that altered mobility. Dr Stone's evidence apart, all that there was to go on in the material before the Tribunal were Mr Harris' inability to recollect whether he suffered altered mobility and his actions immediately after the incident which were not themselves suggestive of any such altered mobility.

40. The material indicated signs and symptoms of pain, but no more. The matters relied upon by the Tribunal in refusing to assume the existence of altered mobility … point inescapably to the conclusion that it could not properly on the material before it have made the assumption that Mr Harris suffered acute signs and symptoms of altered mobility.”

54.     In Arnott v Repatriation Commission (2001) 63 ALD 175 at 452-453 the Full Federal Court, at paragraph 27, said:

“However, as explained above, in carrying out the third step in Repatriation Commission v Deledio, namely of forming an opinion as to whether the hypothesis raised is a reasonable one, the AAT is required to determine whether the ‘particular claim’ fits the ‘template’ laid down in the SoP.  As was stated by the Full Court … in Repatriation Commission v Deledio, the question at that stage is whether the facts raised by the claimant give rise to a reasonable hypothesis, with proof of the relevant facts not being in issue at that stage.”

55.     The Tribunal takes the correct approach to be to have regard to all of the material before it and consider whether the hypothesis as raised is fanciful, impossible, incredible, too remote or too tenuous. In the Full Federal Court decision of Bull v Repatriation Commission (2001) 66 ALD 271 (at pages 276, 277, 282 and 283) Emmett and Allsop JJ said:

“18. It is important to understand the following about East. The Court said that an hypothesis is not reasonable if it is obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous. However, the Full Court did not say that if an hypothesis was not obviously fanciful or not impossible, or not incredible or tenable or not too remote or not too tenuous, it was therefore necessarily reasonable. The material must point to the connecting hypothesis: see the emphasised paragraph in [17] above. …

…

21. There is no doubt that the Tribunal is obliged to look at all the material, not just some of it. It is not entitled at this point to find facts or reject matters. See generally Gleeson v Repatriation Commission (1994) 34 ALD 505, 509.

22. The formation of the opinion called for by subs 120(3) involves an assessment of the factual material before it. It involves reaching an opinion about a factual matter. It is, in that sense, a question of fact: Bey, supra at 373 and Repatriation Commission v Owens (1996) 70 ALJR 904. Here the Tribunal, on the material before it, formed the opinion that a relevant reasonable hypothesis was not raised from the material. The primary judge said that that was a question of fact and that no error of law (and so no question of law for s 44 of the AAT Act) was presented. …

…

41. However, the inability rationally to characterise the hypothesis as fanciful, etc, does not answer the inquiry for subs 120(3). As set out in East, supra at 533:

‘A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts.. It is an hypothesis pointed to by the facts, even though not proved on the balance of probabilities.’

…”

56.     Moving on to consider step four of Deledio (supra), the Tribunal must decide whether it is satisfied beyond reasonable doubt that the applicant’s incapacity did not arise from a war-caused injury.  It is at this point that many of the arguments put by the Respondent come into play.  The Tribunal assesses each of these in turn to ascertain whether one, some or all serve to satisfy the Tribunal beyond reasonable doubt that the Applicant’s condition was not war-caused.

57.     The hypothesis put forward by the Applicant, in relation to his alcohol consumption, is that he was distressed at being unable to be at home for the birth of his daughter and that this, and increased access to alcohol including spirits at the British shore depot, gave rise to an increase in his alcohol consumption to the level required in factor 5(a) of the SoP.

58.     The material before the Tribunal that could be said to point to this hypothesis is:

§  The Applicant’s evidence that he was very happy about his wife’s pregnancy and expected to be home in time for the birth, that he had not taken spirits before staying at the British shore depot where he had a daily rum issue and had access to the depot’s wet canteen and that his drinking became heavy;

§  Mrs Musgrave’s evidence that the Applicant was happy about her pregnancy and expected to be at home for the birth in February, that before sailing in May he was a moderate drinker, not drinking at home or every day and only occasionally getting drunk and that when he came home he was drinking more and more often than he previously did and that he would get drunk more often than before;

§  Dr Koller’s report of the history given by the Applicant that ”it was stressful being in the Navy and away from home” and not seeing his daughter “until she was three months old”.  Dr Koller also said that ”his rational for heavy drinking was to cope with RAN service and the stress of absence from home”;

59.     The Tribunal is required to consider all of the material before it, not just some of it (see Bull supra).  There is considerable material before the Tribunal that points away from the Applicant’s eligible service being the cause of his increased alcohol consumption, including:

§  The Applicant’s evidence that on the HMAS Warramunga he had witnessed the death of a friend and that this had contributed to his drinking and his evidence that in 1959, while his wife was in hospital with tuberculosis and he was caring for his children, he did not drink;

§  Mrs Musgrave’s evidence that the Applicant’s motor vehicle accident and the death of his friend contributed to his drinking;

§  The report of Dr Mattick that the Applicant drank the same amount of beer on the Quiberon as he did on the Warramunga but also drank rum at the British shore depot;

§  Document T5, the Applicant’s claim for disability pension, in which he says that his drinking is “causally related to severe trauma when a ship mate was killed on return the ship (HMAS Warramunga)”;

§  Document T6, the report of Dr Tellis dated 28 February 2001, which says “Excessive use of alcohol also occurred at the same time due to accidental death of friend.”

§  Document T8, an alcohol questionnaire completed by the Applicant, which says in answer to the question “How much did you drink?”, “On board HMAS Warramunga after my mate was killed, I started drinking a large bottle or can (26oz) and used to trade for other bottles or cans from non drinkers.  By the time I was posted to HMAS Quiberon in 1958 I was drinking 2 and 3 large bottles or cans every day.”

§  The Applicant’s failure to mention to Dr Tellis, his advocate Mr Casey and the Department his upset at being away from home for the birth of his daughter and his concentration instead on the death of his friend as a cause of his increased alcohol consumption.

60. However, the Tribunal is mindful of the terms of section 9(1) of the Act, and in particular, subsection 9(1)(b) (injury arose out of or was attributable to eligible service). In Repatriation Commission v Law (1980) 31 ALR 140 the Full Federal Court said of the equivalent provision to section 9(1) (b) of the Act:

In s 101(1)(b) the words “arising out of” require a consequential relationship of the incapacity or death with the service out of which it is said to arise. It is not useful to attempt to put a gloss upon the words of the Act by saying that the causal relationship must be “immediate”, “direct” or “proximate” or by saying it connotes a “real”, “sole” or “dominant” cause.

The Act does not say death which is “caused by” or “results from” his war service — phrases which might connote a proximate causal relationship. The expression “arisen out of” is satisfied if some less proximate causal relationship is established. Of course, a suggested relationship which is fanciful is not sufficient; and a suggested relationship may be so tenuous as to preclude its consideration as answering the description “arising out of”…

It seems clear that the expression “attributable to” in each case involves an element of causation. The cause need not be the sole or dominant cause: it is sufficient to show “attributability” if the cause is one of a number of causes provided it is a contributing cause. Under s 101(1)(b), it is sufficient to show “attributability” if a member’s war service is a contributing cause to the incapacity or death in respect of which the claim is made.

61.     With this in mind, the Tribunal considers that the material before it points to the Applicant’s enforced absence from home together with his access to alcoholic spirits at the British shore base, having been a contributing, but not the only, cause of his increased alcohol consumption.  That is, the material before the Tribunal points to a series of occurrences including the Applicant’s motor vehicle accident, the death of his friend (both occurring outside the period of operational service) and his enforced absence from home together with his time at the British shore base (within a period of operational service) that led to an increase in the Applicant’s drinking.  In accordance with the principles set out in Law (supra), the Applicant’s absence from home and exposure to spirits at the British shore base, while not the sole or even dominant cause, was a contributing cause and his level of alcohol consumption was therefore attributable to his operational service. To that extent, and given the Applicant’s satisfaction of the other aspects of factor 5(e) of the SoP, the hypothesis is reasonable pursuant to section 120(3) of the Act.

62.     It remains for the Tribunal to consider whether there is evidence to satisfy it, beyond a reasonable doubt, that the Applicant’s incapacity is not war caused.  Given the principle in Law (supra) and the absence of any pertinent matter in addition to the material outlined above, there is no evidence to establish, beyond reasonable doubt, any fact that disproves the hypothesis.  It follows that the hypothesis is reasonable and the Applicant’s condition is war caused.

Determination

63.     The Tribunal sets aside the decision under review and in substitution therefor determines that the Applicant’s cerebral ischaemia is war caused.

I certify that the 63 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Member

Signed:

Neil Glaser    Associate

Date/s of Hearing  12 May 2003 
Date of Decision   3 December 2003
Solicitor for the Applicant           Brian Winship
Advocate for the Respondent   Peter Godwin