Myler and Repatriation Commission - [2002] AATA 713

DECISION AND REASONS FOR DECISION [2002] AATA 713

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/1442

VETERANS' APPEALS DIVISION          )
           Re      Douglas Leonard Myler
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

Tribunal Mr M D Allen, Senior Member

Date22 August 2002
PlaceLismore and Sydney

Decision The decision under review so far as relates to hypertension is set aside and the Tribunal substitutes in lieu thereof its decision namely THAT the Applicant Douglas Leonard Myler is entitled to pension for the war-caused disease of Hypertension as and from the 13 April 1999. AND THAT this matter is remitted to the Repatriation Commission in order that it may assess the rate of pension to be paid for all war-caused injuries and diseases suffered by the Applicant.

(Sgd) M D ALLEN
..............................................
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS: Hypertension. Whether sub-hypothesis of alcohol abuse raised on the material adduced. Facts raised to be negatived beyond reasonable doubt in order to defeat claim. Effect of conflict of definitions in a later Statement of Principles.

Veterans' Entitlements Act 1986 - s6A, s120A

Repatriation Commission v Gorton [2001] FCA 1194
Repatriation Commission v Deledio 83 FCR 82
McGlynn v Repatriation Commission 1 RPD 210
McKenna v Repatriation Commission 86 FCR 144
O'Neil v Repatriation Commission [2001] FCA 1492
Goodwin v Phillips 7 CLR 1
Butler v Attorney General (Vic) 106 CLR 268

REASONS FOR DECISION

Mr M D Allen, Senior Member

By application lodged with the Tribunal on 21 September 2001 the Applicant sought review of that part of a decision by the Repatriation Commission on 13 July 1999 that refused his claim for Hypertension.
As the Applicant had operational service, as that term is defined in section 6A of the Veterans' Entitlements Act 1986 (VEA), the standard of proof in this matter is that provided by subsections 120(1) and (3) VEA. Those subsections provide inter alia that the Tribunal shall be satisfied that the Applicant's disease of Hypertension was war-caused unless is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal will be deemed to be so satisfied, if after consideration of the whole of the material before it, it is of the opinion the said material does not raise a reasonable hypothesis connecting the said disease with the circumstances of the particular service rendered by the veteran. Section 120A VEA provides that a hypothesis will not be reasonable unless it conforms to a so-called Statement of Principles. Subsection 120(6) VEA provides that no party to this review bears any onus of proof.
In this matter two Statements of Principle are applicable, the first of those is Instrument No 31 of 2001 concerning Hypertension and the other is Instrument No 76 of 1998 concerning alcohol dependence or alcohol abuse. At the time the Respondent Repatriation Commission made the original decision in this matter, the Statement of Principles relating to Hypertension was Instrument No 25 of 1999 however as Instrument No 31 of 2001 is as favourable to the Applicant as the earlier Instrument, then it is the latter Statement of Principles which must initially be applied (see Repatriation Commission v Gordon [2001] FCA 1194).
The relationship between subsections 120(1) and (3) VEA and the Statement of Principles regime was set out by the Full Court of the Federal Court in Repatriation Commission v Deledio 83 FCR 82 at 91, and those particular steps are now too well known to require recapitulation here.
The Applicant's oral evidence was relatively straightforward and easy to follow. The same can not be said of the document which was taken in as Exhibit A2 and which is a typed copy of a audio tape provided by the Applicant to his solicitors. That document indicates the Applicant has a degree of mental impairment as a result of his alcohol abuse.
In evidence in chief the Applicant stated that he had left school at age 15 to help in his father's carrying business. He grew up in Theodore, which is a small country town in Western Queensland. Later he left Theodore and worked as a process worker in Rockhampton and Brisbane. He joined the Navy at age 18.
At the time the Applicant joined the Navy, the only naval trade available to him was that of a cook. After recruit training at HMAS Cerberus in Victoria he was initially posted to Townsville. From Townsville he was posted to the ship KOOPA which was acting as a support vessel to a squadron of Fairmile launches operating along the coast of Papua New Guinea and into what was then Dutch New Guinea.
The history of the KOOPA is set out in Exhibit R2, the report of Captain Josephs (retired). At paragraphs 5 and 6 of his report Captain Josephs states:
"…5. KOOPA was a small (416 tons) ex-Brisbane cruise boat which was taken up by the RAN for war service as a "Fairmile Tender". She was not a fighting ship, but followed the operational path of a group of about 16 Fairmile Launches, and based herself in anchorages conveniently located to service their logistic and other support requirements. These services would have included the supply of fuel, ammunition and naval stores.
6. KOOPA was a coal burning ship, and supplies of steaming coal were often not reliably available. In his article Mr Brant [sic] mentions that because of coal shortages she had to be towed over long distances by the tug WATO, when moving base."
The Applicant recounted that his flight from Townsville to Milne Bay en route to join the KOOPA was quite traumatic as the aircraft was buffeted by tropical storms and had to fly close to sea level. Having arrived at Milne Bay in order to join the KOOPA the Applicant boarded HMAS Glenelg, a corvette. During the voyage from Milne Bay to Alexishafen on the New Guinea North coast to join the KOOPA which was then berthed at Mading, the Applicant and some others were put aboard an abandoned landing ship discovered at sea by HMAS Glenelg and were made responsible for sailing it to Alexishafen. The Applicant stated that he was scared during this period as he had to steer the vessel by reference to a light from the Glenelg. The Applicant had not been trained as a seaman so apprehension on his part is readily understandable.
Two major incidents occurred to the Applicant whilst aboard the KOOPA. The major event was whilst the Koopa was travelling along the North Coast of New Guinea towards Biak. The Applicant stated that he was looking over the side of the vessel, when he saw the wake of a torpedo travelling towards the vessel. Apparently the torpedo went underneath the vessel as the KOOPA had a very shallow draft.
Although cross-examined on this matter the Applicant consistently maintained that what he saw was a torpedo. Apparently it was remarked upon by other sailors, but more to the point, the Applicant's evidence that he thought to himself at the time "poor mum" meaning he felt sorry for his mother being notified of his death has the ring of verisimilitude.
It was put to the Applicant that the torpedo incident did not happen and at best he only thought he saw a torpedo. This he denied. As he put it in chief "I had no doubt it was a torpedo, I was absolutely traumatised, I thought I was going to die."
Doubt has been thrown upon the Applicant's evidence by the report of Captain Josephs. The statement in that report is hearsay and in the absence of Captain Joseph's source of information, former petty Officer Bryant, being called as a witness together with the circumstance that the newspaper article written by Mr Bryant was written for popular consumption and does not purport to be a definitive history of the KOOPA in World War II, this material does not prevail as against the Applicant's sworn evidence. No other evidence in the form of the KOOPA's logbooks or monthly record of proceeding have been produced, (and probably are no longer extant) nor is there any material before me as to the known movement of Japanese submarines in the area at the time. In all of these circumstances therefore whereas I accept that there is doubt as to the Applicant's evidence regarding the torpedo, I am not prepared to say, that I am satisfied beyond reasonable doubt that his evidence is false.
The second matter referred to by the Applicant and which does find support in Captain's Josephs report is that the KOOPA by dent of having large amounts of ammunition and petrol oil and lubricants aboard, some in drums on the deck, was a floating bomb. As the Applicant said: "From the time I joined it the KOOPA was waiting to go up with one big bang. I was really scared the whole time." Earlier the Applicant had said that the KOOPA was a sitting duck and one tracer bullet, if it had hit a drum of fuel on the deck, would have resulted in the whole lot having gone up.
Although the KOOPA was never the subject of any air raids itself, the Applicant did hear air raid sirens and saw Japanese aircraft fly overhead. During this time he was "absolutely scared - waiting for the inevitable."
At paragraphs 15 and 16 of his report Captain Josephs says:
"…15. Mr Bryant explains in his article that the Fairmiles were required to protect the fleet, which was gathering in Geelvink Bay, near Biak, from possible submarine attack, and KOOPA was based nearby in her normal support role. He said that small groups of Japanese bombers passed overhead almost nightly, to attack the airfields near Biak. Air raid sirens were sounded, and the ship went to Action Stations, but her close range anti-aircraft armament would have been ineffective against the bombers, and no attempt was made to engage them. He said he believed KOOPA and other small ships were ordered not to fire because by doing so they would only draw attention to themselves. No bombs were dropped near KOOPA or other ships nearby.
16. Mr Bryant confirmed that the cargo on board included items such as depth charges, ammunition for herself and the sixteen or so motor launches in her group, and large quantities of high octane fuel. She also carried a lot of pure alcohol fuel, but he was not aware how it was used. Much of the fuel was stowed on the upper deck in drums, and would have been an explosion hazard in an action."
The Applicant in these proceedings dates his alcohol abuse from the time in January 1945 when the crew of the KOOPA received their belated Christmas beer ration. He stated that up until that time he had not drunk but then he and two others just drank and drank. They were able to get extra beer rations from the teetotallers on board and then turned to lemon essence. In his statement he says that he then proceeded to drink pure alcohol and passed out waking up in a hospital.
Asked as to what caused the binge he said: "You are 19, suddenly you feel on top of the world rather than being scared all the time".
The Applicant then gave evidence of how on the voyage back from New Guinea to Brisbane, the KOOPA was beset by a gale and rough seas. Of this the article by Mr Bryant says:
"When the crew of HMAS KOOPA finally sailed south for home, we hit gale-force cyclonic winds in the Coral Sea.
With our shallow draft and the ship pitching and rolling with a rolling with great violence and versatility, all the ship's company, except the duty watch, assembled in groups wearing life-jackets and shorts, eyeing the hazily distant mainland and waiting for the ship to take her last plunge, the wind howling in taut halyards."

On arrival back at Brisbane the Applicant was posted ashore at the Naval Depot in Alice Street and commenced a pattern of heavy drinking which has existed to this day.

Prior to these proceedings the Applicant had stated that his alcohol intake had increased from the time he joined the Navy. At document T8 of the documents prepared for the Tribunal pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 there is at page 59 an Alcohol Questionnaire completed by the Applicant on 22 June 1999. In that document he states that he commenced to drink alcohol whilst on leave from HMAS Cerberus and drink every day while on leave. He does go on to say however, that he believes he became addicted to alcohol whilst serving aboard the KOOPA and after referring to the Christmas beer issue binge, stated in effect that from then on he was unable to control his drinking.
In evidence the Applicant stated that before enlistment in the Navy he had some experience of alcohol in that he would have a "swig" at dances. A matter which I do know and therefore take into account is that up until at least the late 1960's the legal age for drinking alcohol in Queensland was 21 years. The Applicant also stated that whilst in Townsville posted to HMAS Magnetic, he had a girlfriend and did not drink.
Document T18 is a letter from one of the Applicant's brothers in which he says that the Applicant was not a drinker or smoker prior to his enlistment in the Navy but that the writer was surprised to see that after the Applicant returned home on leave in 1945 he was a very heavy drinker.
To me it is entirely consistent with the course of events that a young man on entering the services is induced to drink alcohol by his peers whilst on leave. At that stage he is able to "take it or leave it" eg. he does not drink whilst not on leave and at another time for personal reasons he does not drink or drinks at a moderate level. Later because of the exigencies of his particular service, he develops an alcohol dependence or a habit of alcohol abuse.
That the events of active service can lead to an increase in the level of smoking tobacco was recognised in McGlynn v Repatriation Commission 1 RPD 210 at 213 and I can see no reason why the same principals should not apply to a veteran's consumption of alcohol.
The Applicant's history of starting to drink in the Navy and then drinking more heavily was also recorded by Dr Miller, physician in his report of 16 March 2000 (T15). Dr Miller records "he started drinking when he joined the Navy and became a very heavy drinker indeed in New Guinea in January 1945". Dr Miller also recorded a history that the Applicant "was in constant fear that the ship would blow up if attacked". He was "constantly stressed out all the time". Dr Miller also took a history of the torpedo incident.
Psychiatrist Dr Hayes in his report of 21 November 2000 (T21) recorded the following history:
"…Throughout the nine months that he and his crewmembers were in New Guinea, he felt stressed when on board a civilian depot ship. They were constantly under threat of attack, though were never actually hit. On one occasion he believes they were subjected to a torpedo attack, when he saw what he thought was a torpedo pass under the boat…
At the time of his discharge from the Navy he had four weeks detention following a 10 day drinking binge.
He has been a heavy drinker ever since…"

Dr Hayes concluded his report:

"…This 75 year old man gives a long history of alcohol dependence, which appeared to begin during his Service years. His initial drinking behaviour appears secondary to peer group pressure, and is unrelated to any stressful events. The stress of being in the war zone certainly appears to have maintained some of his drinking, but did not in itself cause it. In addition there is no evidence of associated or related diagnosis such as PTSD or Generalised Anxiety Disorder."

I note that whereas Dr Hayes did not find that the Applicant suffered from any Anxiety Disorder, the Applicant's evidence was that by being forced to relive the events of his war service which hither to, he had "blocked out", he is now suffering from painful recollections and nightmares.
The Respondent has very properly conceded that the Applicant does suffer from alcohol dependence and that he consumed, and is consuming, the required quantity of alcohol to conform to the requirements of Instrument No. 31 of 2001 and that the Applicant was consuming this amount of alcohol at the time of the clinical onset of Hypertension. I find as a fact that the Applicant was alcohol dependant on his return to Australia from service in New Guinea waters.
What is to be decided by the Tribunal is whether the Applicant's alcohol dependence was war-caused. As Responded pointed out in McKenna v Repatriation Commission 86 FCR 144 at 151 the hypothesis that the Applicant's Hypertension is war-caused can only be regarded as reasonable if the sub-hypothesis linking his alcohol dependence with war service is also found to be reasonable.
Instrument No 76 of 1998 is the Statement of Principles dealing with alcohol dependence. The definition of alcohol dependence in that Instrument is different to the definition of alcohol dependence in Instrument No 31 of 2001. As Instrument No 31 of 2001 is the latest in time and the definition therein is specific to the Instrument, the definition in that Instrument must prevail. See Beal's Cardinal Rules of Legal Interpretation 3rd at pp 480 - 481 and Goodwin v Phillips 7 CLR 1 at pp7 and 16. However as discussed at p199 of the 4th edition of Pearce on Statutory Interpretation quoting Fullagar J in Butler v Attorney General (VIC) 106 CLR 268 at 276 the rest of Instrument No 76 of 1998 as to applicable factors and other definitions must apply according to its tenor.
Factor 5(b) of Instrument No 37 of 1998 reads "experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence…" Experiencing a severe stressor is defined as:
"…experiencing a severe stressor means, the person experienced, witnessed or was confronted with, an event or events, that involved actual or threat of death or serious injury, or a threat to the person's or other people's physical integrity, which event or events might evoke intense fear, helplessness or horror."
In other words what is required is that the veteran:
(a) experienced or was confronted with
(b) an event or events that involved
(c) a threat to his or to other persons physical integrity
(d) which might evoke fear, helplessness or horror.
On the material adduced before me two such situations were raised namely the torpedo incident and the time(s) Japanese bombers passed over head.
It was submitted by the Respondent that the events had to have an objective occurrence. Whilst I accept this submission the question as to whether there was a torpedo attack against HMAS KOOPA is a question to be decided at the 4th Deledio stage that is to say it is for the Respondent to negative this proposed fact beyond reasonable doubt. So far as the Japanese aircraft passing overhead are concerned all that the definition requires is a threat. There is abundant evidence that the event evoked intense fear in the Applicant.
As was pointed out in O'Neil v Repatriation Commission [2001] FCA 1492 whether the applicant felt fear is a subjective test. It seems to me that it requires no lack of fortitude in the applicant as a 19 year old to feel fear when Japanese bombers are passing over head and he is a crew member of a vessel loaded with combustibles such as ammunition and fuel.
In these circumstances the Applicant developing an alcohol dependence within the two years of experiencing the severe stressor is understandable and the hypothesis having been raised I am not satisfied beyond reasonable doubt that the facts necessary to sustain the hypothesis have been negatived beyond reasonable doubt.
The decision under review so far as relates to Hypertension is set aside and the Tribunal substitutes in lieu thereof its decision namely that the Applicant Douglas Leonard Myler is entitled to pension for the war-caused disease of Hypertension as and from the 13th day of April 1999. This matter is remitted to the Repatriation Commission in order that it may assess the rate of pension to be paid for all war-caused injuries and diseases.

I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of:

Senior Member M D Allen
Signed:         .....................................................................................
  Associate: Nathaniel Wills
Date of Hearing  6 August 2002
Date of Decision  22 August 2002
Solicitor for the Applicant         Mr B Winship, Rockliffs Solicitors
Advocate for the Respondent Mr J Marsh, Department of Veterans' Affairs