Mychael and Repatriation Commission
[2003] AATA 1162
•19 November 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1162
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/1456
VETERANS' APPEALS DIVISION ) Re Sylvia Mychael Applicant
And
Repatriation Commission
Respondent
DECISION
Tribunal Ms S M Bullock, Senior Member Date19 November 2003
PlaceSydney
Decision Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the decision under review is set aside and in substitution therefor, the Tribunal decides that the death of the late veteran, Mr Vernon Mychael, is war-caused. Mrs Mychael is qualified to receive a War Widow’s Pension with effect from and including 10 May 1998.
..............................................
Ms S M Bullock
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Whether Death of Veteran was War-Caused – Reasonable Hypothesis –Hypertension –Alcohol Dependence
LEGISLATION
Veterans’ Entitlements Act 1986 ss 8, 9, 119, 120, 120A
AUTHORITIES
Repatriation Commission v Gorton (2001) 110 FCR 321
Bull v Repatriation Commission (2001) 66 ALD 271
Connors v Repatriation Commission (2000) 59 ALD 61
Repatriation Commission v Hancock [2003] FCA 711
McKenna v Repatriation Commission (1999) 86 FCR 144
Repatriation Commission v Deledio (1998) 83 FCR 82
Mason v Repatriation Commission [2000] FCA 1409
Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537
Gorton v Repatriation Commission (2001) 63 ALD 723
REASONS FOR DECISION
19 November 2003 Ms S M Bullock, Senior Member
1. This matter is a remittal from the Federal Court of Australia in relation to matter number N2000/1202. A decision by the Administrative Appeals Tribunal (“the Tribunal”), differently constituted, was made in relation to this matter on 27 June 2002. The Applicant, Mrs Sylvia Mychael, lodged an appeal to the Federal Court on 25 July 2002. On 23 August 2002, Whitlam J of the Federal Court of Australia ordered, by consent, that the appeal be allowed, that the decision of the Tribunal dated 27 June 2002 be set aside and that the matter to be remitted to the Tribunal for hearing and determination.
2. The original application for review to the Tribunal by Mrs Sylvia Mychael was of a decision by the Repatriation Commission (“the Commission”) dated 12 August 1998 (T2), as affirmed by the Veterans’ Review Board (“the Board”) on 9 June 2000, that determined that the death of the Applicant’s late husband, Vernon Archibald Mychael, was not war-caused.
3. A Hearing was held before the Tribunal in Sydney on 20 March 2003. Mrs Mychael was represented by Mr M Vincent of Counsel, and the Respondent, the Commission, was represented by Miss R Henderson of Counsel. Oral evidence was provided to the Tribunal by Mrs Mychael. Documents were lodged and taken into evidence pursuant to section 37 of the Administrative Appeal Tribunal Act 1975 (“T Documents”, T1-18) in addition to the following exhibits:
Exhibits
Description
Date
Exhibit A1
Applicant’s Statement of Facts and Contentions
17 October 2001
Exhibit A2
Statement of Mrs Sylvia Mychael and Annexures A-G
23 November 2000
Exhibit A3
Statement of Mrs Sylvia Mychael
15 October 2001
Exhibit A4
Statement of Annette Marion Mychael
23 November 2000
Exhibit A5
Statement of George S Dickie
16 November 2000
Exhibit A6
Statement of Mr Clifton Mychael
24 November 2000
Exhibit A7
Report of Dr R Gertler, Consultant Psychiatrist
30 November 2000
Exhibit A8
Second Report of Dr R Gertler, Consultant Psychiatrist
30 November 2000
Exhibit A9
Report of Dr MG Miller, Consultant Physician, and attached Curriculum Vitae
7 December 2001
Exhibit R1
Respondent’s Statement of Facts and Contentions
11 December 2001
Exhibit R2
Report of Associate Professor RP Mattick
28 November 2000
Exhibit R3
Report of Air Commodore JT Owens, Writeway Research Service
28 February 2002
Exhibit R4
Respondent’s Statement of Facts and Contentions on Remittal
2 December 2002
Exhibit R5
Report of Professor MF O’Rourke AM
31 October 2002
Exhibit R6
Report of Air Commodore JT Owens, Writeway Research Service
6 November 2002
Exhibit R7
Transcript of Administrative Appeals Tribunal Hearing for Application N2000/1202
14 December 2001
17 June 2002
ISSUES
4. The main issue in this matter is whether or not Mr Mychael’s death from hypertension was war-caused, which will be determined by a consideration of the following sub-issues:
· Whether Mr Mychael suffered a war-caused psychoactive substance abuse, and if so;
· Whether Mr Mychael’s war-caused psychoactive substance abuse, involved daily consumption before and continuing at least until the accurate determination of hypertension.
LEGISLATION
5. A decision in this matter requires consideration of the provisions of the Veterans’ Entitlements Act1986 (“the Act”).
6. Section 8 of the Act deals with when a veteran’s death is considered to be war-caused.
7. Section 9 of the Act deals with war-caused injuries and diseases.
8. Section 13 of the Act deals with eligibility for pensions.
9. Section 119 of the Act reflects that decision-makers are not bound by the technicalities and that decision-making under the Act is of an administrative nature rather than judicial and also allows decision-makers to take into account matters such as the effects of the passage of time, the dimming of memory and the absence or deficiency in records.
10. The standard of proof to be used in relation to Mr Mychael’s operational service is that of the reasonable hypothesis. The Tribunal is required to apply subsections 120(1) and 120(3) of the Act, which as relevant provide:
“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.
…
(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
...”
11. Section 120A of the Act deals with Statements of Principles and requires that an assessment of the reasonableness of an hypothesis must be undertaken with any Statements of Principles issued by the Repatriation Medical Authority (“RMA”) or any other relevant determination or declaration under the Act. As relevant, Section 120A of the Act states:
“120AReasonableness 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 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.
….”
STATEMENT OF PRINCIPLES
12. There is no dispute between the parties and the Tribunal agrees that the relevant Statements of Principles in this matter are:
· Statement of Principles concerning Hypertension, Instrument Number 83 of 1995.
· Statement of Principles concerning Psychoactive Substance Abuse or Dependence, Instrument Number 5 of 1994.
13. It is agreed that the Statements of Principles at the time of the original decision by the Repatriation Commission are more favourable to the Applicant, particularly having regard to the Federal Court decision in Repatriation Commission v Gorton (2001) 110 FCR 321.
BACKGROUND
14. Mr Vernon Mychael served in the Royal Australian Air Force (“RAAF”) from enlistment on 29 August 1949 until discharge on 14 August 1970 (T3). He had the following periods of operational service (T3, p8):
· 13 July 1953 to 17 October 1954 - Tengah, Singapore
· 17 November 1960 to 1 June 1962 - Butterworth, Malaya
· 2 June 1962 to 28 June 1962 - Ubon, Thailand
· 28 June 1962 to 7 December 1962 - Butterworth, Malaya
· 8 December 1962 to 30 January 1963 - Ubon, Thailand
· 31 January 1963 to 1 May 1963 - Butterworth, Malaya
15. Mr Mychael died on 13 August 1997. His Death Certificate recorded the cause of death as “Hypertensive heart disease” (T5, p40).
16. Mr Mychael’s service documents indicate the following records in relation to his hypertension:
· On 8 August 1949, Mr Mychael’s “Entry Examination (Non Flying) Board Record” recorded that he was “Fit I”. His blood pressure was recorded as Systolic 140mm. Hg., Diastolic 70 mm. Hg. (T3, p9).
· On 2 March 1960, an “Examinations (Non-Flying) Record Card”, recorded Mr Mychael’s blood pressure as 130/88 (T3, p12).
· On 23 August 1965, a “Medical Examination Record” recorded Mr Mychael’s blood pressure as 120/80 (T3, p15).
· On 30 March 1966, a “Medical Examination Record” recorded Mr Mychael’s blood pressure as 140/90 and indicated his current medical category as “Fit Class One” (T3, p16).
· On 9 July 1970, Mr Mychael’s blood pressure was 130/90 (T3, p18).
· On 1 September 1971, a “Medical Examination Record” recorded a blood pressure reading of 140/80 (T3, p17).
· On 19 September 1980, an “Examinations (Non-Flying) Record Card” recorded Mr Mychael’s blood pressure reading as 126/90 (T3, p14).
17. An Alcohol Questionnaire completed on 3 August 1998 (T8), recorded that Mr Mychael began to consume alcohol on a regular basis upon joining the RAAF, because of peer group pressure. It recorded that Mr Mychael drank every day, three to four cans of beer, and also wine. It was recorded that Mr Mychael’s alcohol consumption changed significantly upon discharge from the RAAF, and his taste at this time changed to wine. It was recorded that Mr Mychael was still drinking alcohol just prior to his death.
18. Mrs Mychael lodged a claim for War Widow’s Pension on 10 August 1998 (T4). On 12 August 1998, the Repatriation Commission decided that the death of Mr Mychael was not related to service (T2).
19. On 11 November 1998, Mrs Mychael appealed to the Board. On 18 February 1999, a delegate of the Repatriation Commission reviewed the matter and found that there were no grounds to intervene and vary the decision under section 31 of the Act (T11). On 9 June 2000, the Board affirmed the decision of the Repatriation Commission (T12).
20. On 4 August 2000, an appeal was lodged with the Tribunal (T1).
EVIDENCE
evidence of mrs sylvia mychael
21. Mrs Mychael provided two statements (Exhibit A2, Exhibit A3) and gave oral evidence to the Tribunal.
22. Mrs Mychael stated that Mr Mychael came from a small country town and had led a “pretty sheltered life”. Mr Mychael’s father died when he was five years old and his mother reared him in the country. It was a small community and he was very involved in cricket and tennis, playing on Saturdays. Mrs Mychael believed that drinking alcohol was not the way of life there and in Exhibit A2, she noted that Mr Mychael’s mother had told her that Mr Mychael did not drink before he enlisted.
23. Mrs Mychael met Mr Mychael in late 1954. This was after his first period of operational service in Singapore. At this time, Mrs Mychael stated that alcohol was prominent, but she did not realise it was a problem for Mr Mychael until she married him. Mr and Mrs Mychael married in 1958. In Exhibit A2, Mrs Mychael stated that each time she saw him during their courtship, which was only “a couple of times” he was drinking. During their dating period, including from 1955, they would go drinking together until they were tipsy, Mr Mychael consuming between six to ten beers (Exhibit A2). She thought these were midis of beer.
24. Attached to Exhibit A2 as Annexures A-G, are letters written by Mr Mychael to Mrs Mychael prior to their marriage and when he was at Point Cook during 1956 and 1957. In Exhibit A2, Mrs Mychael noted that these indicated to her that he often drank to the point of inebriation and felt quite ill as a result and the topic of beer and drinking was prominent in his letters. She noted that “It almost seemed as though he was torn between the tempting relief alcohol brought him and the knowledge it was no good for him”.
25. Mrs Mychael told the Tribunal about an incident when they were first engaged, where Mr Mychael was involved in a car accident, which is described in Exhibit A2, paragraph 4. There is also a “Report of an Injury” form for Mr Mychael which appears to be in relation to this incident at T4, p10, which records the date of the accident as 25 May 1957. Mrs Mychael stated that Mr Mychael was an instructor at the RAAF Base and was out socialising with cadets. On the way home, Mr Mychael was driving the car and ran into a motorcycle and turned his car. Mr Mychael had been drinking that night. Another cadet in the car suffered serious brain damage as a result of the accident. Mrs Mychael believed this incident was covered up by her husband and the story was told that the motorbike had no headlights on. No counselling was provided for Mr Mychael. She stated that she knew Mr Mychael “was extremely upset at the thought that he had cut one of the cadet’s life short” (Exhibit A2). Mrs Mychael stated that at the time, Mr Mychael was remorseful and did not subsequently speak of the incident at all. Mrs Mychael believed that this was the most stressful incident experienced by Mr Mychael on service. She told the Tribunal that this was because Mr Mychael had to take some of the blame for that incident, even though it was covered up.
26. In Exhibit A2, Mrs Mychael described Mr Mychael’s drinking after they were married. He drank every afternoon at the mess from 4.15 until 6pm and did not come home for tea until he was ready. After tea he would fall asleep. He often came home drunk, staggering, with slurred speech and looking dishevelled. On Thursday and Friday nights, he came home more inebriated, could not walk straight and would fall asleep with his clothes on. On weekends, Mr Mychael went out drinking until midnight and came home extremely drunk.
27. In 1960, Mr and Mrs Mychael moved to Malaya and lived on Penang Island. In Exhibit A2, Mrs Mychael noted that her husband would come home by 5.30pm and start drinking. Mr Mychael was mainly drinking beer at this time and he mostly drank at home. They had constant visitors to their home and her husband drank more beer on the nights they had visitors than when they were home alone. When there were visitors, he would drink between six to ten beers. Mrs Mychael stated, however, that it did not matter if they did not have any visitors, he still drank. She also assumed he drank during lunch on the RAAF Base. She stated that there was a culture of drinking in the RAAF. Once a fortnight there were big “drinkups” on the Island and her husband would come home extremely late and very drunk. On weekends there was sport, and unless something was happening at the base, they played at the Sports Club. Mrs Mychael described one occasion in 1962 when her husband drove her and a friend home from a tennis carnival when he was “blind drunk”, and the car kept running off the road.
28. Mrs Mychael described an accident that happened at Butterworth, when an aeroplane crashed. Mrs Mychael described her husband’s reaction in telling her of this incident that evening. In Exhibit A2, paragraph 18, Mrs Mychael further described this incident which occurred whilst Mr Mychael was on duty. An aircraft with two pilots had taken off, but had engine problems and the emergency ejector did not work, as the aircraft was not high enough in the air to eject the pilots properly Both pilots died. One of the pilots was Mr Mychael’s tennis partner and friend. When Mr Mychael told her about this he “was noticeably upset about it and could not talk about it. He told me the bare facts and then clammed up. He appeared to be in shock and remained silent”.
29. In Exhibit A2, paragraph 20, Mrs Mychael also noted that Mr Mychael told her about the continuous bombing day and night during the “communist onslaught” in Malaysia. She stated:
“He told me about bombs being accidentally released during these raids. He had great responsibility for the fitting of bombs to the aircraft and was concerned that an aircraft losing its load before it got on its way could be very life threatening and potentially his fault.”
30. Mrs Mychael stated in oral evidence that this in fact referred to Mr Mychael’s period of service in Singapore, before she met him. Mrs Mychael stated that the bombing day and night was the most worrying time of his career. She stated that Mr Mychael was a Corporal in charge of loading the bombs on the aircraft. He took this responsibility very seriously and for him it was a “terrifying experience” undertaking this task. Mr Mychael described to her the fear and responsibility of getting it right. Mr Mychael’s “NCO” had told Mrs Mychael that if a bomb was not properly loaded and then dropped, there was no point running because a person could not run fast enough to get away from the exploding bomb. It was a situation which had actually occurred, Mrs Mychael stated.
31. Mrs Mychael stated that the most terrifying experience in terms of loading bombs occurred when preparing aircraft at night prior to undertaking low-flying missions over the jungle. This was particularly stressful for Mr Mychael because he got to know the airmen. Mrs Mychael noted that she became aware of the reference to “low flying” from the report of Air Commodore JT Owens (Exhibit R3) and she had not mentioned that to the Tribunal in December 2001. Mrs Mychael denied looking at material subsequent to the Board and earlier Tribunal hearings and coming up with answers to suit her case. Mrs Mychael noted that she learnt a great deal more about Mr Mychael since his death, because of her exposure to documents and information about him. Asked about her evidence to the Board that her husband did not change after the incidents she described which had occurred on operational service, Mrs Mychael stated that she did not think when answering these questions. She did not understand much about all these matters and remembered more about her husband’s experiences as she was forced to think about them. She acknowledged she had been confused about the timing of certain events in her husband’s life.
32. After Butterworth, Mrs Mychael stated that Mr Mychael’s consumption of alcohol was an established pattern. Mrs Mychael also linked his continual and heavy consumption of alcohol to his being an elite sportsman, who because of this and playing sport with officers, was invited to the Officer’s Mess. She thought that Mr Mychael was drunk probably two to three nights per week. Mrs Mychael thought that he drank more after Butterworth due to availability, as it was more convenient to be drinking. He drank more in Malaya than Melbourne, when they were courting. Mrs Mychael stated that for the first few years after their return from Butterworth, that was the lowest point of their marriage. She came home expecting her second child and they had to travel to different bases. They were not very happy because he drank a great deal and spent a lot of time in the mess. Mr Mychael drank consistently and continually. Mrs Mychael did not know how her husband got himself to work. He would be so drunk he was unable to hold himself upright and she had to put him to bed or he fell asleep in front of the gas fire.
33. In Exhibit A2, Mrs Mychael described her husband after he was discharged from the RAAF in August 1970. At this time he became a civilian in the Navy, remained on base and was still linked to his RAAF mates. He remained a beer drinker and continued to drink on a daily basis. He drank at lunch, in the afternoon and at night also had a further two beers. In 1983, Mr Mychael became involved with the Penrith Panthers Rugby Leagues Club. He developed a taste for wine and preferred wine. His consumption of wine fluctuated, sometimes drinking two to three glasses and sometimes up to 15 glasses and “getting totally intoxicated”. Mr Mychael never ceased drinking, except for three weeks, Mrs Mychael recalled, prior to her daughter’s wedding when he was trying to lose weight.
34. The first time Mrs Mychael spoke to Mr Mychael about his drinking was at the base at Kingswood, when she told him that if he went out again, she would not be there when he returned. Mrs Mychael believes that she left it too late before she started complaining. She stated that in Malaysia and Melbourne she was upset with Mr Mychael for his drinking and was “not speaking to him” for periods, but did not address the alcohol problem at this time.
35. Mrs Mychael acknowledged that she has some difficulties with memory, and she did not mention certain events to the Board. She stated that she only remembered certain things when she stopped to think about why Mr Mychael became so dependent on alcohol. Mrs Mychael noted that when Mr Mychael had discussions with her, it was more of a yarn and that it was not a terrifying experience by the time she got to hear about it. In Exhibit A2 (paragraph 17), Mrs Mychael noted that Mr Mychael avoided recollections of his wartime experiences and did not talk about them with her. She did not believe that this indicated that Mr Mychael was not affected by the stress and responsibility he experienced in the RAAF.
36. Mr Mychael joined the RAAF and 18 months later found himself in a stressful environment. Mrs Mychael believes her husband was very stressed. Mrs Mychael believes that Mr Mychael used alcohol to relieve himself and it became an established life for him. He used alcohol as a “balm”.
37. In Exhibit A1, Mrs Mychael commented on a report from Associate Professor Mattick, Clinical Psychologist, dated 28 November 2000 (Exhibit R2). She considered certain statements in his report were untrue or inconsistent with the information she provided. Mrs Mychael explained that the reason she could not comment on whether or not there was a change in Mr Mychael’s drinking after Malaya in 1953 and 1954, was because she did not meet her husband until 1955 (in oral evidence she stated this was late 1954), and obviously could not comment on any changes during the earlier period.
38. Mrs Mychael noted that although she told Professor Mattick she believed Mr Mychael commenced drinking in 1949, she was not able to provide information about specific amounts or his drinking habits. She stated that this was an assumption and she has since been told by an ex-serviceman who served with her husband when they first joined the RAAF, that very little alcohol was consumed during this time. She did not know, therefore, how Professor Mattick made the assumption that Mr Mychael was drinking heavily from 1949 as she was unable to make any statements to this effect. Mrs Mychael also noted that the Alcohol Questionnaire (T8) was completed by Mr R Burns, President of Nepean Legacy. She noted that the information is inconsistent because it was filled out soon after her husband passed away when she was grieving and unable to provide valuable answers.
evidence of mr gs dickie
39. Mr Dickie provided a Statement dated 16 November 2000 (Exhibit A5). Mr Dickie served with Mr Mychael between 1956 and 1958 at Point Cook and for six months at Butterworth in Malaya. Mr Dickie noted that at Butterworth, Mr Mychael was an armourer for the Air Squadron. In relation to their Service at Butterworth Mr Dickie stated:
“At Butterworth in Malaya, we had a fighter squadron during the time that we were at loggerheads with Indonesia. Although we never came to the point where we engaged in fighting, we were constantly in a standoff situation. It was a time of great uncertainty and stressful anticipation. We never knew one day to the next whether there was going to be an attack. For this part of our service, the government awarded both myself and Mr Mychael and other members of the squadron medals for being in Malaya at that time.” (Exhibit A5, paragraph 2)
40. Mr Dickie did not serve with Mr Mychael in Singapore, but he believed Mr Mychael would have seen stressful service with the “No. 3 Squadron” in Singapore. Mr Dickie noted that Mr Mychael was based in this active war zone for about 18 months and that as armourer, Mr Mychael had to ensure planes were loaded with correct weaponry. Mr Dickie stated:
“I am sure that he would have seen accidents. Furthermore, he would have been mates with the pilots and navigators that went out on the bombing raids. There was great pressure and responsibility in this regard as it was his job to ensure that his mates in the aircraft left and came home in one piece…..In the course of conversation, Mr Mychael often commented that he was concerned that his mates would go out on a mission and never come back.”
41. In relation to Mr Mychael’s drinking, Mr Dickie did not know if Mr Mychael drank before the RAAF. He noted that during service drinking was something that was expected of service members and “felt like a chore that you should do”.. Mr Dickie stated that Mr Mychael drank a minimum of six beers per day during the time he served with him, and sometimes ten to 12 beers or more. There were many occasions when Mr Mychael would become inebriated. After service, Mr Dickie noted that between 1963 and 1979, he saw Mr Mychael half a dozen times. He observed Mr Mychael was still drinking, at least six beers and sometimes ten to 12 beers. After 1979 they were good friends and Mr Dickie described Mr Mychael as a heavy drinker, drinking eight to ten beers and sometimes wine each occasion that he saw him, never ceasing his heavy drinking up to the day he died.
evidence of clifton mychael
42. Mr Mychael’s brother, Clifton Mychael, provided a statement dated 24 November 2000 (Exhibit A6). In this statement, Clifton Mychael noted that his brother did not drink before service and that he was drinking “a fair bit” after service, drinking approximately four to five scotches each time he saw him. He also noted that Mr Mychael did not discuss his service experiences, only mentioning that his service in Malaya was “pretty rugged” and “pretty tough going”.
evidence of annette marion mychael
43. Ms Mychael, Mr and Mrs Mychael’s daughter, provided a statement dated 23 November 2000 (Exhibit A4). Ms Mychael recalled many occasions throughout her life when her father would come home so inebriated that he could not even take his clothes off. When she and her sisters had their driver’s licence, they would have to pick their father up from the local Leagues Club and he would be very drunk. Other times he would stumble home himself. Ms Mychael described an accident that occurred when her father took herself and a friend to enrol at university. He was drinking at lunch with an “old war mate” and then, when driving them home, he fell asleep and the car crashed into a concrete wall. The car was “completely written off”.. The tow truck driver who arrived told Mr Mychael he was better off not telling the police, and the police were never called into the matter.
evidence of dr r gertler, consultant psychiatrist
44. Dr Gertler provided two similar reports each dated 30 November 2000 (Exhibit A7, Exhibit A8). Dr Gertler was of the opinion that Mr Mychael developed alcohol dependence during his period of service in the RAAF, which continued following his discharge and for much of the remainder of his life. Dr Gertler was of the view that Mr Mychael satisfied Factor 1(a) of the Statement of Principles concerning Psychoactive Substance Abuse or Dependence, in terms of “experiencing a stressful event”.. Dr Gertler felt that Mr Mychael was exposed to traumatic events during his period of service and this exposure, as well as other factors, caused the development of his alcohol dependence. Dr Gertler concluded that there was a reasonable hypothesis connecting Mr Mychael’s hypertensive cardiac disease to service in respect to the development of his alcohol dependence.
evidence of dr mg miller, consultant physician
45. Dr MG Miller, Consultant Physician, provided a report dated 7 December 2001 (Exhibit A9). Dr Miller opined that Mr Mychael’s hypertensive heart disease was a major contributing factor to his death from fatal cardiac arrhythmia. Dr Miller was of the view that Mr Mychael’s alcohol dependence led to the development of hypertension. He was also of the view that alcohol dependence led to the development of his obesity and that Mr Mychael’s obesity also led to the development of hypertension. In relation to whether Mr Mychael’s death was war-caused Dr Miller noted:
“I consider that Mr Mychael’s alcohol dependence contributed to the hypertension that was a major factor contributing to the fatal arrhythmia.. If it is determined that his alcohol dependence was contributed to by his war-service, then I consider that Mr Mychael’s death was war-caused.” (Exhibit A9, p4)
evidence of professor m o’rourke, professor of medicine, university of new south wales
46. Professor O’Rourke provided a report dated 31 October 2002 (Exhibit R5). Professor O’Rourke noted that Mr Mychael drank heavily throughout his period in the RAAF, beginning prior to the period of eligible service and continuing throughout his life. He noted that hypertension was diagnosed in approximately 1984 with treatment commenced of “Inderal”, which continued until 1994 when “Renitec” was substituted. He noted that at this time Mr Mychael was regarded as obese, weighing 100 kilograms. Professor O’Rourke also noted that Mr Mychael was obese at the time of his death.
47. Professor O’Rourke estimated that the clinical onset of Mr Mychael’s hypertensive heart disease was in 1984 when medical therapy was deemed necessary. Professor O’Rourke did not believe that any of the factors in the relevant Statement of Principles for hypertension applied in Mr Mychael’s case. The basis for Professor O’Rourke’s conclusion in this regard was that Mr Mychael’ hypertension did not develop until 1984, some 14 years after Mr Mychael resigned from the RAAF and 21 years after his last period of active service. Professor O’Rourke also noted his belief that the averaged blood pressure readings for Mr Mychael during service were within the normal range.
evidence of associate professor rp mattick, clinical psychologist, national drug and alcohol research centre
48. Associate Profession Mattick provided a report dated 28 November 2000 (Exhibit R2). Associate Professor Mattick was of the view that Mr Mychael met the criteria for alcohol dependence, with the first signs of this occurring in approximately 1955. Associate Professor Mattick further opined that Mr Mychael suffered from “alcohol abuse” [which the Tribunal believes should be alcohol dependence, given what Associate Professor Mattick consistently describes in the remainder of his report] involving daily consumption of alcohol before and continuing at least until the accurate determination of hypertension, which he believed was in 1985 (Exhibit R2,p14). Associate Professor Mattick noted however that the date of onset of hypertension warranted specialist medical opinion. In this regard, Associate Professor Mattick further noted that Mr Mychael had a diastolic blood pressure reading of 90 in 1960, a systolic/diastolic reading of 140/90 in 1966, a diastolic reading of 90 in 1970 and he had a systolic reading of 140 in 1971, suggesting an onset prior to 1985.
49. Associate Professor Mattick was of the view that Mr Mychael did not meet the Statement of Principles concerning Psychoactive Substance Abuse or Dependence, as he did not experience a stressful event prior to the clinical onset of psychoactive substance abuse or dependence. Specifically, he was not of the view that loading bombs in Butterworth equated to being a stressful event. Associate Professor Mattick concluded that Mr Mychael’s alcohol dependence was not related to service. Associate Professor Mattick did not deal with any other events relied upon by the Applicant.
50. In relation to obesity, Associate Professor Mattick believed other specialist medical opinion was required in relation to whether or not Mr Mychael was obese at the time of the accurate determination of hypertension. Associate Professor Mattick had some difficulty relating Mr Mychael’s increased weight to eligible service as he did not acquire any eating habits in service leading to weight increase and he did not believe that his alcohol consumption could be related to eligible service. Further, the increase was due to inactivity as reported by Mrs Mychael.
evidence of air commodore jt owens (raaf ret’d), writeway research service
51. Air Commodore JT Owens provided two reports: 28 February 2002 (Exhibit R3) and 6 November 2002 (Exhibit R6).
52. The first report concerned Mr Mychael’s initial period of operational service between 13 July 1953 and 17 October 1954 in No 1 Squadron in Tengah, Singapore. Air Commodore Owens described the role of No 1 Squadron to provide air support for ground forces in pursuit of “Communist Terrorist” forces. Bombloads were dropped on targets located over the entire area of Malaya, comprised mainly of jungle. Mr Mychael’s responsibilities in No 1 Squadron as an armament fitter was for the maintenance, preparation loading and arming of weapons, including bombs, before takeoff and disarming on return.
53. Air Commodore Owens reported that Mr Mychael would have known aircrew, there would have been close working contact and possibly social contact in sporting and social activities, but he did not think more so than other ground crew, and he could not comment on the “mateship” that may have developed with particular aircrew. He confirmed that during Mr Mychael’s period of service in Singapore, there were no records of any squadron aircraft being hit by enemy fire and no casualties from enemy action. There were also no serious accidents involving No 1 Squadron aircraft and no casualties.
54. The second report dealt with Mr Mychael’s service with No 478 (Maintenance) Squadron at Butterworth Malaysia from 17 November 1960 to 1 May 1963, including his two short attachments to Ubon, Thailand during this posting. No 478 Squadron provided higher level maintenance, including all armaments for two RAAF Sabre Squadrons. Mr Mychael was a Flight Sergeant and his duties were supervising others in the maintenance and servicing of all armament equipment for Sabre aircraft, including the preparation of bombs, rockets, guns, missiles and usually practice weapons.
55. Mr Mychael went on two short attachments to Ubon, Thailand during this period. Air Commodore Owens reported that the base was placed on alert following suspected enemy helicopter activity near the base, at a time Mr Mychael would have been there. However, he reported that most personnel regarded this as routine, especially after it was determined to be a false alarm, but “some appear to have been apprehensive”.
56. Air Commodore Owens reported a RAAF Sabre aircraft crashed during this period, on 11 September 1962, shortly after take off and the pilot was killed. Air Commodore Owens thought that the pilot may have been known to Mr Mychael because he was also a cadet at Point Cook RAAF College when Mr Mychael was an armament instructor there.
57. Air Commodore Owens found no evidence of any other serious accidents or incidents at No 478 Squadron during Mr Mychael’s posting. He felt that during this posting there was no confrontation threat to RAAF personnel and there was a very active social and sporting environment. Commenting on the availability of alcohol, he noted that alcohol was available at the many sporting clubs both on the mainland and on Penang Island where the Mr and Mrs Mychael lived and that most people entertained regularly in their quarters.
APPLICANT’S SUBMISSIONS
58. Mr Vincent submitted that the evidence shows that Mr Mychael had a long-standing problem with alcohol and hazardous alcohol consumption. Mr Vincent submitted in relation to onset, that Mr Mychael’s problem with alcohol was established by the mid-1950s, shortly after Mr Mychael’s return from Singapore, his first period of operational service. When Mrs Mychael met her husband she noticed a problem with drinking and that all his social activities revolved around drinking. Mr Vincent submitted that there is not a great deal of information about Mr Mychael in the period before Mr and Mrs Mychael met. Mr Vincent noted the motor accident in 1957, in which alcohol was implicated.
59. Mr Vincent submitted that the hypothesis contended by the Applicant is that Mr Mychael had alcohol dependence by the mid-1950s. This was caused by the first period of operational service, or in the alternative, subsequent service worsened the already established condition. This involves a consideration of what constitutes a stressful event, Mr Vincent submitted.
60. Mr Vincent submitted that the conditions of service life and employment with the RAAF was the context in which Mr Mychael’s alcohol habit was established and in which it worsened. Mr Vincent noted that if there was not the requirement in the relevant Statement of Principles to look for a stressor, it could be said that that culture helped set Mr Mychael’s drinking habit in place. Mr Vincent noted that there is a legal requirement under the Act since 1994, that the Statement of Principles must be met. Mr Vincent submitted that the culture of service life does not detract from the stressor having a role to play in Mr Mychael’s alcohol habit.
61. Mr Vincent submitted that there had to be a “stressful event” as defined in Instrument Number 5 of 1994, which requires there to be an incident where there were external stimuli and objective symptoms of stress. Mr Vincent then referred to stressful events during Mr Mychael’s first period of service in Singapore. Firstly, in relation to the loading of bombs, this was described in Mrs Mychael’s statement (Exhibit A2, paragraph 20). Mrs Mychael recalled her husband telling her about the bombs and his concern of something going wrong and the consequences of that. This was something that clearly worried the veteran, it was submitted. Mr Mychael thought his duties carried a great responsibility and were life threatening. Mrs Mychael knew he was scared because of how he talked about that responsibility. Although there was no evidence of a malfunction at the time, there was the concern of there potentially being a malfunction. Mr Vincent referred to the evidence about this given at the last Tribunal hearing on 14 December 2001 (Exhibit R7, pp20, 21). This transcript included Mrs Mychael’s evidence that:
“…it was a drama that they faced nightly, bombing up, because they-as far as I can tell it was a series of checks that you go through when you’re bombing up and if one is-is not connected or-or somehow that it can cause a series of losing the whole load before they even take off and while it could-they could even drop and not explode. I mean the whole thing is-was- that was his concern.”
62. Mr Vincent also noted the stress associated with “low-flying” of pilots, and also “night-flying”. Mr Vincent referred to the historian’s report by Air Commodore JT Owens (Exhibit R3, pp 3 and 4). At page 3 Air Commodore Owens noted that bombs were released at about 6000 feet, depending on weather conditions and that following bomb release, the aircraft descended to tree-top level and would strafe the entire area with fire. Also at page 4 of Exhibit R4, it was noted that the aircraft returned to base at low level so that their presence could be used as a morale boost for locals and have a demoralising effect on “communist terrorists”. It was noted in Exhibit R3 that because of the role played by armour fitters, there would be a close working contact with the crew and that all members of the Squadron felt responsibility for crew.
63. Mr Vincent referred to the statement from Mr Dickie (Exhibit A5), at paragraph 3, where he stated that he knew Mr Mychael would have seen stressful service in Singapore. Mr Vincent submitted that Mr Dickie was not stating that Mr Mychael told him anything, but that he was using his own knowledge and experience that Mr Mychael would have been friends with pilots and navigators and responsible for doing his job properly, to ensure flying missions came home in one piece. In the course of conversation, Mr Mychael said that he was concerned his mates would go out on a mission and never return.
64. Each of these incidents during his first period of service is sufficient to constitute a stressful event, Mr Vincent submitted. This points therefore to the factor in the relevant Statement of Principles being raised. Mr Vincent submitted that there is no material that indicates that these events did not occur and there is no challenge to Mrs Mychael’s evidence. Mr Vincent submitted that the report of Air Commodore Owens does not have a disproving function.
65. Turning to the second period of service, Mr Mychael was drinking two nights a week and on weekends. Mr Vincent submitted that circumstances have changed at Butterworth in respect to alcohol being kept in the house. Mr Mychael’s drinking increased and he drank more because of its availability. He was coming home drunk two to three times per week. It did not matter whether he had company in the house or not. Mr Mychael’s consumption level was consistent with an intensification and worsening of alcohol condition during his second period of operational service.
66. Mr Vincent submitted that the stressful event on the second period of service was the death of the pilot shortly after take-off. Mr Mychael was noticeably shaken and upset by this event, as described by Mrs Mychael. Mr Vincent submitted that the fact that he was prepared to talk about it was significant. Mr Vincent noted that it is not sufficient to say that Mr Mychael did not “experience” a stressful event, because he did not witness a stressful event. There is no requirement that a stressful event be “witnessed”.. Mr Vincent submitted that what is required is that someone experienced something that gave them a psychological response. The stressful event does not have to be observed.
67. Mr Vincent submitted that Mr Mychael’s changed pattern of drinking appears to have been for the duration of Butterworth. Mr Vincent submitted that it is important to look at what happened thereafter, where there was a further intensification of the amount of alcohol that Mr Mychael was consuming. Mr Mychael reached the point where he was unable to return home unassisted. This is consistent with the stressful event of the death of a friend/sporting partner in a violent manner, being properly claimed to have a causative role. There is therefore a plausible explanation why his drinking worsened. In relation to the changes in lifestyle at Butterworth as a reason for intensified drinking, Mr Vincent submitted that this is not inconsistent with the factor hypothesized. Once again, the Tribunal should be guided by whether there is any evidence by way of disproof.
68. Mr Vincent concluded that Mr Mychael met Instrument Number 5 of 1994 concerning Psychoactive Substance Abuse or Dependence and accordingly met Factor 1(b) of Instrument Number 83 of 1995 concerning Hypertension. In relation to the onset of hypertension, Mr Vincent submitted that the Tribunal should accept Professor O’Rourke’s opinion that this was in 1984 (Exhibit R5, p2), when Mr Mychael was treated for that condition. In relation to the cause of death being hypertension, this was confirmed in the Death Certificate (T5, p40). Mr Vincent submitted that the date of effect was 10 May 1998, three months prior to date of claim.
RESPONDENT’S SUBMISSIONS
69. Miss Henderson, for the Respondent, noted that Tribunal is obliged to look at the whole of the material before it [Bull v Repatriation Commission (2001) 66 ALD 271]. Miss Henderson submitted that Mr Mychael was not of legal drinking age to when he left civilian life and enlisted in the RAAF. Four years later, he was sent to Singapore as an Armourer. Miss Henderson referred to the statement of Mr Dickie and the culture of drinking. Mr Dickie spoke of a culture of alcohol in the RAAF and that Mr Mychael would have engaged in drinking when he played sport. Miss Henderson noted that if you played sport, you went out afterwards. Mrs Mychael says that the alcohol questionnaire, which she signed, was completed by someone else and at a time when she was very upset. Mrs Mychael wanted this questionnaire to be disregarded as she was unable to provide coherent or valuable answers as detailed in her Statement of 15 October 2001 (Exhibit A3). However, Miss Henderson submitted that the Tribunal should consider that although not deliberate, Mrs Mychael has over time, put more material forward, tried to explain inconsistencies and has enhanced the history on each occasion, including at the Board Hearing, the previous Tribunal Hearing and before this Tribunal hearing. Miss Henderson contended that Mrs Mychael is searching for some reason why Mr Mychael abused alcohol.
70. Turning to the Statement of Principles, Instrument Number 5 of 1994, there must be a “stressful event”, Miss Henderson submitted. In relation to the incident regarding the “low-flying”, Miss Henderson submitted that it would have been unlikely that pilots would have communicated to veterans that they were flying low. Moreover, the evidence does not point to this being stressful for the veteran. Miss Henderson submitted that this is not an incident and not a cause of anxiety for Mr Mychael.
71. In relation to the loading of bombs, Miss Henderson noted in paragraph 8 of JT Owens report (Exhibit R3) that there were no records of casualties and no accidents at Tengah involving aircraft. Miss Henderson noted that if the bombs had dropped out of the aircraft, the veterans would not have made it home. The Applicant submitted that each time Mr Mychael carried out a task of loading weaponry, an incident occurred. Miss Henderson contended that carrying out one’s ordinary duty does not amount to an incident. Furthermore, the fact that Mr Mychael was “concerned”, falls short of being “stressed”.. Miss Henderson noted that no event had occurred in front of Mr Mychael, which would have caused him to be stressed.
72. In the second period of operational service, no material points to a stressful event that occurred. The most stressful event Mrs Mychael recalled since she met her husband, was the 1957 car accident during a period of non-eligible service, where a cadet being driven by Mr Mychael was brain-damaged. Miss Henderson submitted that the other event relied upon by Mrs Mychael, the death of the pilot, does not meet the definition of stressful event. Miss Henderson opined that Mr Mychael was not present, therefore it cannot be a stressful event. It was something Mr Mychael was sad about, but was not seen by Mr Mychael and was not a stressful event.
73. Miss Henderson pointed to Mrs Mychael’s evidence regarding alcohol consumption (Exhibit R7, p27), in which she stated that Mr Mychael’s alcohol consumption increased in Melbourne. Miss Henderson submitted that there was no change of alcohol use in Butterworth, except that Mr Mychael drank at home because of transport instead of in the mess. At Penang Island, there was no hotel down the road, so Mr Mychael had to keep alcohol at home and drink it there. She noted that Mrs Mychael’s evidence was that alcohol consumption had increased in Melbourne, when he returned home.
74. Miss Henderson further noted Exhibit R7, page 29, which refers to Mrs Mychael informing Associate Professor Mattick that Mr Mychael was not distressed by operational work and in fact wanted to be back doing that work rather than office work.
75. Miss Henderson submitted that this case is similar to the one reviewed in Bull v Repatriation Commission (supra) in which the late Mr Bull drank before, during and after operational service. As in Bull v Repatriation Commission (supra), there is a dearth of material pointing to stressful event. Miss Henderson also cited the Federal Court decision of Kenny J in Connors v Repatriation Commission (2000) 59 ALD 61 at page 70, as providing that there must be material pointing to a stressful event.
FINDINGS
76. The Tribunal has come to its decision, taking into account the evidence, submissions, legislation and case law.
77. The Tribunal notes that it is not in dispute that the cause of Mr Mychael’s death on 13 August 1997 was hypertensive heart disease as recorded in the Death Certificate (T5, p40). For Mr Mychael’s death to be found to be war-caused, then hypertension would need to found to be a war-caused condition. The cause of death as recorded also appears to be accepted by Professor O’Rourke (Exhibit R5, p2) and by Dr Miller. Dr Miller found that Mr Mychael’s collapse prior to his death was due to the sudden onset of cardiac arrhythmia but noted that as there was no evidence of any coronary or cerebral disease, he considered that “Mr Mychael’s hypertensive heart disease was a major contributing factor to this fatal cardiac arrhythmia” (Exhibit A9, p2). The Tribunal therefore, having regard to the Federal Court decision in Repatriation Commission v Hancock [2003] FCA 711, is reasonably satisfied that Mr Mychael’s death was related to hypertension.
78. The Applicant has contended that the hypothesis connecting Mr Mychael’s death from hypertension with his operational service is his suffering from war-caused alcohol dependence, meeting Factor 1(b) of the Statement of Principles concerning Hypertension, Instrument Number 83 of 1995. This Factor requires:
“(b)suffering from psychoactive substance abuse involving daily consumption of alcohol before and continuing at least until the accurate determination of hypertension…”
79. Having regard to the Full Federal Court decision in McKenna v Repatriation Commission (1999) 86 FCR 144, and section 120A of the Act, the Tribunal notes that each link, or “sub-hypothesis”, that forms part of the overall hypothesis put forward by the Applicant as connecting Mr Mychael’s death from hypertension with his war-service, must also be upheld by a Statement of Principles, in accordance with section 120A of the Act. In this case, it is necessary to consider the sub-hypothesis in relation to war-caused alcohol dependence by reference to a Statement of Principles, which it is agreed and determined by the Tribunal to be the Statement of Principles concerning Psychoactive Substance Abuse or Dependence, Instrument Number 5 of 1994.
80. Turning to the question of whether Mr Mychael meets the relevant Statement of Principles, the first question that must be determined is one of diagnosis, or whether or not, on the balance of probabilities, Mr Mychael suffered from psychoactive substance abuse or dependence. Psychoactive substance abuse or dependence is defined in the Statement of Principles concerning Psychoactive Substance Abuse and Dependence (in almost exactly the same terms as in the Statement of Principles concerning Hypertension) as:
“psychoactive substance abuse or dependence” means a maladaptive pattern of use, attracting ICD code 303 or 304, that is indicated by either:
(a)continued use of the substance despite knowledge of having a persistent or recurrent social, occupational, psychological or physical problem that is caused or exacerbated by use of the substance; or
(b)recurrent use of the substance when use is physically hazardous (for example, driving while intoxicated);”
81. The Tribunal notes that Associate Professor Mattick, Dr Gertler and Dr Miller accept that Mr Mychael suffered from alcohol dependence. Considering the evidence also provided by Mrs Mychael, Mr Dickie, Mr Clifton Mychael and Ms Anne Mychael, the Tribunal is satisfied, on the balance of probabilities, that Mr Mychael suffered from alcohol dependence, involving a maladaptive pattern of use of alcohol, which also meets the definition of psychoactive substance abuse or dependence in the relevant Statement of Principles and in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (“DSM-IV”).
82. Turning to the hypothesis connecting Mr Mychael’s alcohol dependence to service, the Applicant has contended that Mr Mychael’s alcohol dependence was established by the mid-1950s and that he experienced a “stressful event” prior to the clinical onset of alcohol dependence whilst on service in Tengah, Singapore, and he also experienced a “stressful event” in Butterworth, Malaya, which was prior to the worsening of Mr Mychael’s alcohol dependence which, on the Applicant’s submission, occurred during Butterworth and worsened also after Butterworth in Melbourne.
83. Turning to the first period of operational service in Singapore, for this hypothesis to be reasonable, it must fit within the template of the Statement of Principles concerning Psychoactive Substance Abuse or Dependence. Factor 1(a) in the Statement of Principles Instrument Number 5 of 1994, states:
“(a)experiencing a stressful event prior to the clinical onset of psychoactive substance abuse or dependence, and maintaining the abuse or dependence post-service;…”
Where the definition of “stressful event” is provided in the Statement of Principles as:
“…an incident in which there were external stimuli (such as combat) that would result in psychological stress, and where there were subjective symptoms of increased stress”.
84. Considering this definition and Mr Mychael’s first period of operational service in Singapore, and not making any findings of fact at this stage, the material points to Mr Mychael telling his wife about the fear and responsibility for aircrew associated with the loading of bombs onto aircraft, as an armament fitter. There is material pointing to Mr Mychael taking the responsibility very seriously and of it being a “terrifying experience” undertaking this task. There is material also pointing to Mr Mychael telling Mrs Mychael about bombs being accidentally released and that he was concerned that the bombs may not be properly loaded. Mrs Mychael believed that this was particularly stressful for Mr Mychael when they prepared aircraft at night for “low-flying” missions over the jungle in the context of Mr Mychael knowing the airmen
85. The Tribunal also notes the material from Mr Dickie, who served with Mr Mychael but not in Singapore, that he believed Mr Mychael would have seen stressful service in Singapore. Mr Dickie believed that Mr Mychael “would have seen accidents” and would have been mates with the pilots and navigators that went out on the bombing raids. He noted the responsibility to ensure “his mates” in the aircraft left and came home in one piece. Mr Dickie also noted that Mr Mychael often commented to Mr Dickie that he was “concerned that his mates would go out on a mission and never come back”.
86. Considering the whole of the material before the Tribunal in relation to Mr Mychael's first period of operational service, the Tribunal is of the view that this does not meet the definition of “stressful event” as provided in the relevant Statement of Principles. In particular, the Tribunal does not believe there is material pointing to the second part of the definition, requiring subjective symptoms of increased stress. In terms of Mr Mychael’s subjective response, the material from Mrs Mychael’s and that of Mr Dickie, although conveying a general sense of the concern and responsibility felt by Mr Mychael, do not, in the Tribunal’s view, convey “symptoms of increased stress” as required by the definition.
87. The Tribunal notes that, as set out in Repatriation Commission v Deledio (1998) 83 FCR 82, in determining pursuant to section 120(3) of the Act whether there is a reasonable hypothesis, this involves a consideration of whether there is material pointing to each element of the Statement of Principles. As experiencing a stressful event is an element in Factor 1(a) of the relevant Statement of Principles, the Tribunal finds that the Statement of Principles has not been met in relation to the Applicant’s hypotheses regarding Mr Mychael’s service in Singapore. Therefore subsection 120(3) of the Act is not met, and there is no reasonable hypothesis raised by the material in relation to Mr Mychael’s first period of operational service.
88. The Tribunal in making this determination has had regard to section 119 the Act, and the problems with remembering details of events and the unavailability of witnesses and evidence for events decades earlier. This is particularly inherent in matters such as claims for War Widow’s Pension, where the veteran is not available to give evidence. However, as noted by Weinberg J in Mason v Repatriation Commission [2000] FCA 1409, it is not the function of section 119 of the Act to fill in gaps or invent evidence where there is absent material pointing to a connection between a disease and war-service. The Tribunal in this matter cannot impute evidence of subjective symptoms of increased stress when this evidence is not available.
89. Turning to the second period of operational service in Butterworth, Malaya, the Applicant contends that the “stressful event” experienced by Mr Mychael during this period was the death of a pilot who was a friend and tennis partner of Mr Mychael. In respect to this incident, the Tribunal is of the view that there is material pointing to an incident that meets the definition of stressful event in the relevant Statement of Principles in which there were external stimuli, being the death of the pilot who was a friend and sporting partner, that would result in psychological stress. The example is given in the definition of combat and the Tribunal is of the view that the death of a friend in an aircraft accident in the context of operational service at Butterworth, would be an incident of sufficient severity to meet the first part of the definition. The material pointing to this incident includes that from Mrs Mychael, as well as the material from Air Commodore Owens about an aircraft crash during the second period of service in Butterworth when a pilot was killed.
90. It is the Tribunal’s view that there is also material pointing to subjective symptoms of increased stress provided by Mrs Mychael who reported that when her husband told her of the incident that day, he was very shaky, noticeably upset, could not talk about it, told her the bare facts and then clammed up, appeared to be in shock and remained silent. While not finding facts at this stage, in the Tribunal’s view, this material certainly points to a reaction which encompasses the subjective symptoms of increased stress. The material also points to an increase in alcohol consumption. The Tribunal therefore finds that Mr Mychael meets that part of the Statement of Principles in relation to experiencing a stressful event.
91. The Tribunal notes that the Applicant has contended that the onset of alcohol dependence is in the mid-1950s as supported by Associate Professor Mattick’s opinion and that the stressful event in Butterworth concerning the death of a pilot occurred prior to the worsening of Mr Mychael’s alcohol dependence. In these circumstances, the relevant factor to be considered in relation to clinical worsening following a stressful event is Factor 1(c), which states:
“(c) experiencing a stressful event prior to the clinical worsening of psychoactive substance abuse or dependence, and maintaining the abuse or dependence post-service;…”
92. In considering Factor 1(c), the Tribunal must also have regard to whether there is material pointing to clinical worsening of Mr Mychael’s alcohol dependence in order to meet the Statement of Principles. The Tribunal notes that paragraph 3 of the Statement of Principles provides that Factor 1(c) only applies in certain circumstances. Paragraph 3 states:
“3. The factors set out in paragraph 1(c) to 1(e) apply only where:
(a) the person’s psychoactive substance abuse or dependence was contracted prior to a period, or part of a period, of service to which the factor is related: and
(b) the relationship suggested between the psychoactive abuse or dependence and the particular service of a person is a relationship set out in paragraph 8(1)(e), 9(1)(e), 70(5)(d),or 70(5A)(d) of the Act.”
93. The material points to Mr Mychael’s alcohol dependence having its onset or being contracted prior to his second period of operational service, therefore satisfying Paragraph 3(a). In terms of paragraph 3(b), the relevant section of the Act is subsection 9(1)(e) which states:
“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:
…
(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.
…”
94. It is necessary for the Tribunal to consider firstly, whether there was an existing condition of alcohol dependence, prior to the stressful event of the pilot dying in the accident. The Tribunal is of the view that it must therefore consider whether there is material pointing to an onset of alcohol dependence in the mid-1950s, as contended by the Applicant. The Tribunal notes that Dr Gertler was of the opinion that Mr Mychael’s alcohol dependence developed during service, but was not specific about when this occurred. Associate Professor Mattick was more specific stating that the first signs of this were in approximately 1955. Mrs Mychael stated that when she met Mr Mychael in late 1954, alcohol was prominent, but she did not think it was a problem until they marred in 1958. During their courtship she only saw him “a couple of times” and on those occasions they went drinking, Mr Mychael consuming six to ten midis of beer. In letters sent to Mrs Mychael from Mr Mychael whilst at Point Cook in 1956-1957, Mr Mychael discusses his alcohol use on occasions including where Mr Mychael apologised for being “bitter and twisted” and “rather drunk” when speaking to Mrs Mychael on the phone (Annexure B), where Mr Mychael was ashamed of his “cranky drunken effort over the weekend” and had decided to “place himself on the dry” (Annexure C). There was also material from Mrs Mychael of Mr Mychael driving and being involved in an alcohol-related car accident in 1957, where a cadet was seriously injured with brain-damage following a collision with a motor-cycle. There is a record which appears to be in relation to this car accident in 1957 at T4, page 10.
95. Mrs Mychael stated that after they were married, Mr Mychael was drinking heavily, spending a couple of hours every day drinking at the mess, often coming home too drunk to walk properly or put himself to bed, particularly on Thursdays, Fridays and weekends. The Tribunal also notes Mr Dickie’s statement and that he served with Mr Mychael at Point Cook in 1956 and 1957 during non-eligible service when Mr Dickie believed Mr Mychael drank a minimum of six beers per day, sometimes ten to 12, and would get drunk on many occasions. Considering the whole of the material, the Tribunal is of the view that it points to an onset of alcohol dependence sometime between the mid-1950s and Mr Mychael’s first period of operational service in Butterworth. The Tribunal notes the material from Air Commodore Owens that the incident involving the aircraft crash was recorded as occurring in September 1962, during a period of operational service (Exhibit R6).
96. In the Tribunals’ view, there is material pointing to Mr Mychael’s alcohol dependence having its onset before his second period of operational service in Malaya, as discussed above, therefore meeting subsection 9(1)(e)(ii) of the Act. The Tribunal also considers pursuant to subsection 9(1)(e) of the Act that there is material pointing to a material contribution to Mr Mychael’s alcohol dependence by his service in Malaya, in terms of the stressful event occurring in his second period of operational service. There is material pointing to a satisfaction of the requirements in paragraph 3(b) of the Statement of Principles, that Mr Mychael’s drinking worsened in Melbourne, after his second period of operational service.
97. The Tribunal finds pursuant to subsection 120(3) of the Act that there is material pointing to Mr Mychael having the onset of alcohol dependence in the mid 1950’s which worsened after his period of operational service in Butterworth which ended in 1963. The material also points to Mr Mychael experiencing a stressful event during the second period of operational service in Butterworth. Thus, a reasonable hypothesis has been raised and the Tribunal must consider whether or not, pursuant to subsection 120(1) of the Act, there are sufficient facts to support the raised reasonable hypothesis.
98. Considering the event of Mr Mychael’s colleague and tennis partner being killed in an aircraft accident, there is objective evidence that there was such an accident as reported by Air Commodore Owens. It was also reported by Air Commodore Owens that the airman killed would probably have been known by Mr Mychael. The death of a colleague is inherently stressful and would not be inconsistent, in the Tribunal’s view, with the example given in the definition of stressful event, of combat. Mrs Mychael’s evidence is that her husband told her of that event. He was visibly shaken and upset and shocked. There is nothing to disprove these reactions.
99. Mrs Mychael’s evidence has been incomplete or perhaps inconsistent at times, but even so, allowing for the passage of time and issues of memory, such difficulties with her evidence do not cause the Tribunal to be other than satisfied beyond reasonable doubt that her evidence about her husband’s reaction to the death of a colleague was accurate. The Tribunal finds therefore that the death of a colleague while Mr Mychael was on operational service at Butterworth in 1962 caused him psychological stress with subjective symptoms of increased stress as a result. There are no facts present to disprove this conclusion.
100. The next step in the reasonable hypothesis is to establish if there is sufficient factual basis to support that there was a causal relationship as a result of service linking the stressful event and a worsening of Mr Mychael’s alcohol dependence. Mrs Mychael’s evidence is that her husband’s alcohol consumption was definitely worse after the second period of operational service at Butterworth. Mrs Mychael pointed to specific and significant behavioural changes including aggression, disregard of his safety when driving and deterioration in their relationship. It may well be, as submitted by the Respondent, that at Butterworth and back in Australia, Mr Mychael had greater access to alcohol. However, given all the evidence, the Tribunal finds that the worsening of Mr Mychael’s alcohol dependence occurred not merely because of a change of circumstances and availability of alcohol, but because of the psychological stress occasioned by the death of Mr Mychael’s friend. That other factors may have contributed to Mr Mychael’s worsened alcohol dependence such as availability, cannot in the Tribunal’s view, detract from the significant contribution by way of service-related psychological stress. Furthermore, noting Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537, the Tribunal is satisfied that Mr Mychael’s alcohol dependence was made worse because of the material contribution of service and did not just become worse.
101. Accordingly, the Tribunal is not satisfied beyond reasonable doubt for the purposes of subsection 120(1) of the Act, that there is no sufficient ground for determining that Mr Mychael had a war-caused alcohol dependence arising out of his second period of operational service in Butterworth.
102. The Tribunal next turns to consider the final link in the causal chain of whether Mr Mychael’s death from hypertension was war-caused. This involves a consideration firstly of whether Factor 1(b) of the Statement of Principles concerning Hypertension, Instrument Number 83 of 1995, is met, and hence whether the hypothesis linking Mr Mychael’s war-caused alcohol dependence with his death from hypertension is reasonable, pursuant to section 120(3) of the Act. The Tribunal has already determined that Mr Mychael had a war-caused alcohol dependence condition. Factor 1(b) of the Instrument Number 83 of 1995 requires suffering from “psychoactive substance abuse”, which is defined in that Statement of Principles as “psychoactive substance abuse and dependence”, and the Tribunal is of the view that Mr Mychael’s war-caused alcohol dependence condition meets this definition. Thus, part of Factor 1(b) is met in regards to suffering from psychoactive substance abuse, as defined.
103. In relation to the issue of “daily” consumption of alcohol in Factor 1(b), the Tribunal also notes from Repatriation Commission v Gorton (supra) that the Full Federal Court endorsed the primary Judge’s consideration of the term “daily” in Gorton v Repatriation Commission (2001) 63 ALD 723, as “just about daily” and Emmett J’s use of daily being “constantly, always, habitually” as referred to in the “Oxford English Dictionary”. In the Tribunal’s view, the material points to Mr Mychael drinking habitually, commencing from approximately the mid-1950s to the early 1960s, and onwards, continuing into his later life. Mrs Mychael stated that alcohol consumption only ceased for a three week period prior to her daughter’s marriage, however the Tribunal is of the view that this is not of significance in that the material points to a constant, habitual, “just about daily” consumption. Material from Mr Dickie indicated that Mr Mychael’s alcohol consumption did not cease until his death.
104. The Tribunal notes that for the purpose of the relevant Statement of Principles concerning Hypertension, Instrument Number 83 of 1995, and as detailed in paragraph 4, there is material pointing to hypertension being accurately determined and diagnosed in 1984 as opined by Professor O’Rourke. Treatment was required at that point (Exhibit R5). The Tribunal notes that there is also material pointing to a possible earlier accurate determination of hypertension, including that of Dr Miller who noted slightly elevated blood pressure readings in 1960, 1965, 1970 and 1971. However, given that there is material pointing to Mr Mychael continuing his daily consumption of alcohol until some time after 1984 and indeed until the day he died, the Tribunal is of the view that the material points to Mr Mychael suffering from psychoactive substance abuse as defined, before and continuing at least until the accurate determination of hypertension, whether the accurate determination is in the 1960s-1970s or in 1984.
105. Thus the material points to each element of the factor, that is suffering from war-caused psychoactive substance abuse, as defined, involving daily drinking before and continuing until the accurate determination of hypertension. Factor 1(b) is thus met and pursuant to subsection 120(3) of the Act, a reasonable hypothesis is raised by the material.
106. The Tribunal next considers whether or not pursuant to subsection 120(1) of the Act, there are sufficient facts to support the raised reasonable hypothesis. The Tribunal has already determined that Mr Mychael had a war-caused alcohol dependence condition. Mrs Mychael’s evidence is that her husband drank daily certainly with worsening subsequent to his operational service in Butterworth. This continued throughout his life and is supported by the evidence from his son, daughter and colleague, Mr Dickie. There is nothing to dispute this level of consumption of alcohol up until the accurate determination of hypertension whether that was in the 1960s, 1970’s or 1984, when Mr Mychael was first treated for hypertension. Thus, having considered all of the material the Tribunal is not satisfied beyond reasonable doubt for the purposes of subsection 120(1) of the Act, that there is no sufficient ground for determining that Mr Mychael’s death from hypertensive heart disease was war-caused.
107. Accordingly, for all the reasons expressed above, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the decision under review is set aside and in substitution therefor, the Tribunal decides that the death of the late veteran, Mr Vernon Mychael, is war-caused. Mrs Mychael is qualified to receive a War Widow’s Pension with effect from and including 10 May 1998.
I certify that the 107 preceding paragraphs are a true copy of the reasons for the decision herein of Ms SM Bullock, Senior Member
Signed: .......................................................................................
AssociateDate of Hearing 30 March 2003
Date of Decision 19 November 2003
Counsel for the Applicant Mr M Vincent
Solicitor for the Applicant Ms N Archer, Dibbs Barker GoslingCounsel for the Respondent Miss R Henderson
Solicitor for the Respondent Ms A Nanson, Australian Government Solicitor
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