Norton and Repatriation Commission
[2010] AATA 298
•27 April 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 298
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200601234
VETERANS' APPEALS DIVISION ) Re LORRAINE NORTON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr John Handley, Senior Member
Dr Kerry Breen, MemberDate27 April 2010
PlaceMelbourne
Decision The decision of the Veterans’ Review Board made on 16 November 2006 is affirmed save that the description of liver cancer, namely, malignant neoplasm of the liver is amended and should, having regard to the evidence heard in these proceedings, be recorded as primary hepatocellular (liver) adenocarcinoma with bony metastases.
(sgd) John Handley
Senior Member
VETERANS’ AFFAIRS – Application remitted from Federal Court – veteran died after VRB decision – claim by estate – multiple hypotheses – whether death from liver cancer connected with alcohol dependence – applicant's representative did not call evidence – decision of VRB affirmed
Veterans’ Entitlements Act 1986 s 5(12)(a), s 5Q(1B), s 196(14), s 196B, s 196B(2), s 196(14), s 196(14(a), s 120(1) and s 126
Safety, Rehabilitation and Compensation Act 1988 s 4
Benjamin v Repatriation Commission [2001] FCA 1879
Comcare v Canute (2005) 148 FCR 232
Comcare v Sahu-Khan [2007] FCA 15
Delahunty v Repatriation Commission [2004] FCA 309
Repatriation Commission v Deledio (1998) 49 ALD 193
Hunter v Repatriation Commission [2010] FCA 145
Kattenberg v Repatriation Commission (2002) 73 ALD 365
Law v Repatriation Commission (1980) 29 ALR 64
Lees v Repatriation Commission [2002] FCAFC 398
McKenna v Repatriation Commission [1999] FCA 323
Nelson v Comcare [2009] FCA 1149
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Bendy (1980) 18 ALD 144
Repatriation Commission v Constable [2006] FCAFC 102
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Gosewinckel [1999] FCA 1273
Repatriation Commission v Hawkins (1993) 117 ALR 225
Repatriation Commission v Keeley (2000) 98 FCR 108
Repatriation Commission v Keeley [2000] FCA 532
Repatriation Commission v Money [2009] FCAFC 11
Repatriation Commission v Norton [2008] FCA 1132
Repatriation Commission v Stoddart (2003) 134 FCR 392
Repatriation v Gorton [2001] FCA 1194
Stoddart v Repatriation Commission (2003) 197 ALR 283
Woodward and Repatriation Commission (2003) 131 FCR 473
REASONS FOR DECISION
27 April 2010
Mr John Handley, Senior Member
Dr Kerry Breen, Member1. This application has an unfortunate history and may be briefly summarised as follows.
2. The applicant was appointed by the respondent pursuant to s 126 of the Veterans’ Entitlements Act 1986 (the Act) as a person approved to continue the claim on behalf of the deceased veteran, Perrin James Goodwin (the deceased), who died on 30 November 2006 when aged 59. The certified cause of death was metastatic carcinoma of the liver and primary carcinoma of the liver.
3. The deceased made his claim on 6 October 2005 and the entitlement, if any, is confined to the assessment period expiring on 30 November 2006. He sought acceptance of metastatic bone disease @ S1 vertebrae. The Deputy Medical Officer with the Department of Veterans’ Affairs (DVA) determined on 2 November 2005, on the basis of medical evidence then available to her that the appropriate diagnosis – according to ICD Codes – was malignant neoplasm of the liver (T11).
4. The deceased was a member of the Australian Army between 1 May 1968 and 30 April 1970. He served in Vietnam from 2 April 1969 until 4 March 1970 as a storeman in the 1st Australian Logistic Support Group Base at Vung Tau.
5. The deceased made a number of applications upon the respondent for acceptance of various injuries or illnesses. Save for acceptance of the conditions of bilateral sensorineural hearing loss and tinnitus which were accepted on appeal to the Veterans’ Review Board (VRB) in July 2005 and which entitled him to a pension at 20 per cent of the general rate, all other applications were rejected, in 1995, 1999, 2003 and 2006 for the conditions respectively of:
psychoactive substance abuse or dependence, hepatic cirrhosis, gout, generalised anxiety disorder, alcohol dependence or abuse, anxiety disorder, chronic alcohol abuse, chronic gastritis, cirrhosis of the liver and malignant neoplasm of the liver.
6. This application is a review of the last decision made by the VRB on 16 November 2006 where it affirmed a decision of the respondent made on 3 November 2005 to reject a claim for acceptance of malignant neoplasm of the liver. This review follows a remittal from Heerey J on 5 August 2008 (Repatriation Commission v Norton [2008] FCA 1132) where His Honour set aside a decision made by the Tribunal (differently constituted) on 2 January 2008 (Re Norton and Repatriation Commission [2008] AATA 1).
7. This review was heard on 22 and 23 October 2009. Mr De Marchi who appeared on behalf of the applicant did not call any witnesses and delivered an oral summary of the facts and issues that he suggested emerged from the documents. Ms Macdonnell appeared on behalf of the respondent and called evidence from Doctors Walton and D’Ortenzio both of whom provided medico-legal opinions at the respondent’s request. Dr Percival, psychiatrist, provided a medico-legal report at the request of the applicant on 21 August 2006 and Dr Blum, the treating oncologist of the deceased, provided a report on 22 November 2006. The failure by the applicant's representative to call these persons was unexplained.
8. Applicants in all proceedings arising out of the death of a veteran are disadvantaged. The very best witness is no longer able to be called to give evidence, to offer explanations, to present a history personally and be available for cross examination. This application is no exception. We have had no alternative but to make findings on the basis of the documents that have been lodged namely, service records, clinical data and medical reports from a number of doctors and hospitals (some who treated the deceased and some who gave medico-legal opinions); some items of correspondence completed by the deceased in his lifetime, the transcript of an earlier VRB proceeding, the transcript in this application and the submissions made and the written submissions lodged by both representatives subsequent to the hearing. We also had regard to the evidence of Doctors Walton and D'Ortenzio. The process of making findings of fact in these circumstances is one of reconstruction of the circumstances experienced by the deceased at all relevant times, yet at the same time, acknowledging the inconsistencies – and there were many – in the histories that were given by him to the treating and medico legal doctors.
the hypotheses
9. Having regard to an amended Statement of Facts and Contentions lodged by the applicant’s representative on 27 August 2009 and the opening submissions made at the hearing (refer transcript, p6-10) we understand that the hypotheses being advanced on behalf of the applicant are as follows:
(i)service à alcohol à cirrhosis of the liver à malignant neoplasm of the liver (refer Statement of Facts and Contentions paragraph 4.13 – 4.19);
(ii)service à alcohol à malignant neoplasm of the liver (transcript, p9);
(iii)service à severe psychosocial stressor à alcohol à malignant neoplasm of the liver (refer Statement of Facts and Contentions dated 27 August 2009 paragraph 4.20 and transcript, p6-7); and
(iv)service à category 1A or 1B stressors à alcohol àmalignant neoplasm of the liver (transcript, p7).
10. The Statements of Principles (SoPs) in force at the date of claim are:
· Instrument No. 171 of 1996 concerning Malignant Neoplasm of the Liver
· Instrument No. 107 of 2007 concerning Cirrhosis of the Liver
· Instrument No. 1 of 2009 concerning Alcohol Dependence and Alcohol Abuse
· Instrument No. 101 of 2007 concerning Anxiety Disorder
A category 1A or 1B stressor is found within Instrument No. 101 of 2007. A severe psychosocial stressor is found within Instrument No. 1 of 2000 concerning Generalised Anxiety Disorder (the applicant is entitled to rely on this instrument by an accrued right, if the Instrument in force at the date of decision does not uphold the hypothesis (refer Repatriation v Gorton [2001] FCA 1194; and Repatriation Commission v Keeley (2000) 98 FCR 108). (Similar considerations apply to Instrument No. 76 of 1998 concerning Psychoactive Substance Abuse or Dependence). Instrument No. 17 of 2008 concerning Alcohol Dependence and Alcohol Abuse has no material distinction for the purposes of these proceedings from Instrument No. 1 of 2009 and Instrument No. 35 of 1998 (Cirrhosis of the Liver).
11. It is noted from the above that the applicant is pursuing a hypothesis which involves consideration of the SoPs concerning anxiety disorder. Heerey J noted at paragraph 4 of His Reasons for Judgment on 5 August 2008 that the applicant had previously relied on a hypothesis which involved consideration of the generalised anxiety disorder Instrument but it was not pursued in the appeal. Ultimately, His Honour set aside the decision of the Tribunal and remitted the matter for further hearing and determination according to law. There is nothing from the terms of the Order made by His Honour in any way confining or restricting the extent of the re-hearing. We regarded this review as a rehearing of all issues raised by the applicant's representative, without any limitation. There was no submission by either party on this issue and the presentation of the case of each party did not suggest any limitations.
12. In the Reasons for Decision of the Tribunal made on 2 January 2008, five stressors were identified as being the events upon which the applicant relied (refer paragraph 5). Those same stressors are alleged either in the Statements of Facts and Contentions lodged prior to this review or were articulated by the applicant’s counsel during his submissions and are evident from the transcript. Two additional stressors to those alleged when the matter was first heard by the Tribunal were raised during this hearing. As we now interpret the transcript and the Statements of Facts and Contentions lodged prior to this review, the events in service which are alleged to have occurred or were experienced by the deceased and which give rise to one or more of the hypotheses may be summarised as follows (for the purposes of the following description, the Statement of Facts and Contentions of 2 April 2009 will be described as SFC1 and the Statement of Facts and Contentions dated 27 August 2009 will be described as SFC2):
(i)Participating in an Australian Rules football match within a few hours of arriving in Vietnam at a location outside the Logistic Support Group Base at Vung Tau in the presence of South Vietnamese and Australian Army personnel (refer transcript, p11 and SFC1 at paragraph 4.12(d) and (e));
(ii)undertaking piquet duties also involving night patrols (refer transcript, p18 and SFC1 at paragraph 4.14);
(iii)occupying living quarters approximately 600 metres from a helicopter landing pad which delivered wounded and deceased Australian personnel to the 1st Australian Field Hospital (transcript, p15);
(iv)serving in a threatening environment (refer transcript, p11 and SFC1 at paragraph 4.12(b) and (c));
(v)being stripped searched after being accused of theft in a Vietnamese bar (refer transcript, p15);
(vi)being notified by letter from his girlfriend in Australia that their relationship had ended (refer transcript, p12 and SFC2 paragraph 4.9); and
(vii)learning of serious injuries to Frank Hunt, a person known to him prior to commencement of service (refer transcript, p12 and SFC1 at paragraph 4.12(f)).
13. In SFC1 at paragraph 4.12 under the subheading Mental Stressors it is alleged that the deceased was confronted with the death of one of his colleagues in Vietnam, which it was alleged satisfied the definition of severe psychosocial stressor as defined within Instrument No. 1 of 2000. We can find nothing from any of the documents lodged, from the Reasons for Decision of the Member who heard the applicant at first instance in this Tribunal, from the judgment of Heerey J, or from the Statement of Facts and Contentions lodged prior to the hearing of this review concerning the death of a colleague of the deceased. It was not an event or an occurrence which was submitted or alleged by counsel during the hearing of this review, nor is there any reference to it in the written submissions lodged by counsel following the conclusion of the hearing.
14. In each of the Statement of Facts and Contentions lodged prior to this review there is no reference to the deceased being exposed or reacting to overhead rocket fire whilst at the base in Vung Tau. There is also no reference to it in a Statement of Facts and Contentions lodged by a lay advocate on behalf of the deceased prior to the first hearing in 2007. The only reference to it by counsel in this review was The base, as he says, on occasions rocketed and he felt scared (transcript, p6). We presume that was a reference to a comment made by the deceased in a letter he wrote on 24 September 2003 (Exhibit A1, p188) where he recorded:
A few times at night we would have rocket fire pass nearby. You could see, hear and feel this from our huts.
Dr Walton referred to rocket fire in his evidence. Dr D'Ortenzio did not refer to it at all, either in his reports or in his oral evidence. There is no reference to rocket fire in the report of Dr Percival. The decisions of the VRB, the Tribunal at first instance and the Federal Court decisions made no reference to rocket fire.
15. We think rocket fire can probably be added to the list of events (refer above) which give rise to hypotheses of connection with service. We do so, despite the broad absence of references to it as described above but by regard to it being identified by the deceased in his letter of 24 September 2003.
16. Dr D'Ortenzio had a note of some events which the deceased regarded as frightening or being at risk, namely, observing fights between other servicemen, being charged with neglect of duty and being accused of destroying a quantity of ice-cream. None of those events were mentioned in any of the Statements of Facts and Contentions or submissions during or at the conclusion of the hearing, the reports of Doctors Walton or Percival, or the letter of the deceased (refer above). The only reference to the accusation of destroying ice-cream (apart from the evidence of Dr D’Ortenzio) is in the reasons of the VRB. We cannot find a reference in any other documents to the other events – neglect of duty and witnessing fights.
MEDICAL EVIDENCE
17. As referred to earlier the respondent relied on the opinions of Doctors Walton and D'Ortenzio, both of whom are consultant medico-legal psychiatrists and who provided opinions at the request of the respondent. Both doctors were called and gave evidence.
dr walton
18. Dr Walton provided two reports. The first dated 23 February 2004 arose out of a consultation with the deceased. The second dated 10 March 2009 arose out of a request by the respondent because further evidence had been obtained.
19. In his consultation with the deceased in January 2004 (which gave rise to the report of 23 February 2004), Dr Walton obtained a history of five events only which were understood to be stressful, namely, undertaking piquet duties and participating in a night patrol on one occasion (extending to a distance of 1km from the Vung Tau Base), participating in a football match, being ordered to disrobe in front of six Vietnamese women (having been accused of theft), hearing rocket fire overnight and observing Medivac helicopters landing at his base delivering wounded or deceased persons.
20. Dr Walton was aware of the definition of generalised anxiety disorder as found within DSM IV and more particularly recited in Instrument No. 101 of 2007 and Instrument No. 1 of 2000. He said generalised anxiety disorder, as defined, did not apply to the description of events given to him by the deceased and a more appropriate diagnosis was social phobia, consistent with an opinion expressed by Dr D'Ortenzio. But for the SoPs, in clinical practice, he would have diagnosed generalised anxiety disorder. Dr Walton said social phobia would be expected to arise in children and persist into adulthood and be a specific condition having more of an emphasis on the ability of a person to function within a social environment.
21. Having regard to the description of the events given to him by the deceased, Dr Walton said that the first criterion of the generalised anxiety disorder definition (criterion A) would not be satisfied namely, excessive anxiety and worry (apprehensive expectation) which occur on more days than not for a continuous period of at least six months about a number of events or activities. Additionally, he said the deceased would not satisfy criterion B of the definition namely, the person finds it difficult to control the worry. He acknowledged the deceased spoke to him about anxiety and worry in a social setting or in an unfamiliar setting but the description given to him by the deceased of the events in service were of being nervous and being on edge (refer first report, p1).
22. Dr Walton said the deceased did not satisfy criterion C of the definition, namely, having anxiety and worry associated with three of six defined symptoms. He said that whilst the deceased did have the recurring phenomena of a sense of being on edge or being tense, those feelings were associated with social settings where he was ill at ease. He acknowledged the deceased did have insomnia and interrupted sleep for about one week of each month but that did not amount to symptoms of that type being present for more days than not during the previous six month period (refer diagnostic criterion C).
23. The remaining clinical criteria within the definition found at D, E and F were also not satisfied. Accordingly, Dr Walton was of the opinion that by strict clinical application of the definition, the diagnosis of generalised anxiety disorder for the purposes of these proceedings could not be established. He remained satisfied that social phobia was the preferred diagnosis. It was also his opinion that even if the diagnosis of generalised anxiety disorder did apply, the deceased did not experience a category 1A or category 1B stressor (Instrument No. 101 of 2007) nor did he suffer a severe psycho-social stressor (Instrument No. 1 of 2000) as those conditions are respectively defined within the Instruments. He said the descriptions of being nervous or being on edge did not indicate substantial distress. Dr Walton noted that the deceased participated in one night patrol only, on the history given nothing happened, firing of rockets from some considerable distance away from the Vung Tau base would not be a meaningful threat and whilst the deceased would be aware of and be empathetic to persons injured or deceased when being delivered by Medivac helicopter, it might provoke an indirect feeling of risk but it would be a minor anxiety (refer transcript, pp33-34). (The definition of anxiety disorder in Instrument No. 101 of 2007 is identical to the anxiety disorder as described in Instrument No. 1 of 2000 – refer paragraph 3(c) of the 2007 SoP and paragraph 2(b) of the 2000 SoP).
24. With respect to the consumption of alcohol by the deceased, there are three SoPs within the assessment period namely; Instrument No. 1 of 2009, Instrument No. 17 of 2008 and Instrument No. 76 of 1998. The 2008 and 2009 Instruments differ only by factor 6(f) in the latter and which has no relevance to this review. Factor 5(b) in the 1998 Instrument provides that a reasonable hypothesis will be raised if the deceased experienced a severe stressor within two years immediately before the clinical onset of alcohol dependence or alcohol abuse. The latter Instruments provide that a reasonable hypothesis will be raised if the deceased experienced a category 1A or 1B stressor as defined within five years before the clinical onset of alcohol dependence or alcohol abuse.
25. Dr Walton was not of the opinion that the deceased suffered a category 1A or 1B stressor nor did he experience a severe stressor as defined in the 1998 Instrument. From the information made available to him, the history obtained from the deceased and his clinical presentation caused him to be of the opinion that the appropriate diagnosis was of alcohol dependence and not alcohol abuse.
26. When he was asked to consider the definition of alcohol abuse as recited in the applicable Instruments, Dr Walton said there was no maladaptive pattern of alcohol use, nor were any of the four parts of criterion A satisfied. Additionally, criterion B was not satisfied because in his opinion, the deceased was alcohol dependent; that is, alcohol dependence prohibits a diagnosis of alcohol abuse.
27. Dr Walton was of the opinion the deceased was alcohol dependent by the time he saw him in 2004 and probably had been for some years earlier. On balance, and having been informed of the contents of the clinical notes of Dr Horton, a general practitioner who treated the deceased, concluded, without being able to identify with any certainty, that the clinical onset was probably not before 1987 when Dr Horton recorded a history of alcohol consumption (refer Exhibit A1, p199 - 5 glasses/night) or 1991 when the notes record cautioned re alcohol (refer Exhibit A1, p201). Dr Walton noted that the deceased had not been advised or cautioned to cease alcohol consumption and having regard to the deceased's history given at consultation of attempts at withdrawal, consumption of light beer and apparent tolerance, clinical onset could reasonably be found to be 10 years earlier . . . or more prior to consultation in 2004 when he was seen by Dr Horton (refer transcript, p44). He thought the occasion of clinical onset could not be found accurately. He described the process as a grey zone.
28. Dr Walton was of the opinion that the deceased had not experienced, witnessed or confronted an event that involved actual threat of death or serious injury as is required in order to satisfy factor 5(b) in Instrument No. 76 of 1998, (experiencing a severe stressor) but acknowledged that it was his opinion in these and other proceedings that an opinion of that type was a matter of fact, not medical expertise. Nonetheless, on the description given to him of the events from the history he obtained from the deceased, he thought that the experiences of the deceased were much less severe than contemplated by the definition. On the history that he obtained, the events described by the deceased would not objectively evoke intense fear, helplessness or horror and the subjective reaction of the deceased would not have achieved that level.
29. In cross examination, Dr Walton said he found the deceased to be an unreliable historian, especially in relation to his alcohol consumption. He acknowledged that the deceased had told him that the quantity of alcohol consumed doubled in Vietnam compared to his consumption of alcohol prior to operational service. However, he was concerned that the deceased's history in relation to other events might be inaccurate. For example, he said that having been accused of theft and being disrobed in front of Vietnamese women may have been a traumatic experience but when he recalled the event the deceased did not give it great weight. Nonetheless, it was acknowledged that the deceased did recall the event with what appeared to be some accuracy.
30. When the events recounted by the deceased to Dr Walton were examined, he was not prepared to accept the invitation of the deceased's Counsel that his responses and reactions to those events satisfied the definition of a severe psychosocial stressor within Instrument No. 1 of 2000, having regard to the language the deceased used when describing the events. By way of example, when it was suggested that overhead firing of rockets would be a fairly frightening occurrence, Dr Walton said the deceased described to him his reaction as being on edge. When it was suggested that observing persons being delivered by Medivac helicopter on stretchers would also be a fairly frightening experience, Dr Walton relied on the deceased's response where the deceased explained it happened to them, it could happen to you (refer his report at Exhibit 1, pp1-4).
31. Dr Walton said he was not aware of the friend of the deceased, Frank Hunt, being injured or the ending of his relationship with his girlfriend. When he heard of those events during the hearing, he said the ending of the deceased's relationship was a potentially eligible event but whether it caused substantial distress was impossible to say because the deceased did not recount it and that would tend to diminish his regarding it as being very distressed. Dr Walton said the recurring recollections by the deceased of his friend Frank Hunt being injured would probably satisfy the definition of psychosocial stressor although it was indirect. He acknowledged the deceased may have experienced a sense or degree of vulnerability as an enlisted person in Vietnam but he thought that it did not satisfy the definition of severe psychosocial stressor because it was not an event. Additionally, Dr Walton agreed that an increase in alcohol consumption might result from episodes of boredom or peer group pressure or relaxation. However, he said those circumstances would not necessarily be confined to a military context.
32. On balance, Dr Walton agreed that if the events in service experienced by the deceased were combined, they might (in combination) amount to being stressors. However on the description of those events as given to him, he would regard the deceased as talking about relatively mild stress or relatively little anxiety (transcript, p59).
dr d'ortenzio
33. Dr D'Ortenzio is a consultant psychiatrist who assessed the deceased on two occasions at the request of the respondent. He provided reports of 14 December 1999 and 31 July 2002 following each consultation.
34. Dr D'Ortenzio acknowledged that in each report he assessed the deceased as suffering alcohol abuse and dependence, but when asked to consider the DSM‑IV‑TR definitions reproduced in the respective SoPs, it was his opinion that the deceased suffered from alcohol dependence. He agreed that alcohol abuse can only be diagnosed in the event that the clinical symptoms of alcohol dependence (as defined) have not been satisfied.
35. In making his diagnosis of alcohol dependence, Dr D'Ortenzio was satisfied, having regard to the clinical definition, that the deceased was tolerant of alcohol. Whilst there was no history of the deceased suffering DT's he thought it was probable there were withdrawal symptoms because of the extent of the chronic liver disease and by regard to the quantities of alcohol previously consumed. That is to say, any abstinence or withdrawal from alcohol would have produced characteristic withdrawal syndrome (refer definition at (2)). Additionally, on the history obtained, the deceased did consume large quantities of alcohol over a longer period than was intended, there had been unsuccessful attempts to reduce or control alcohol consumption, drinking was one of his main activities (which indicated to him that a great deal of time was spent drinking), social and recreational activities were ultimately reduced and it would appear from advice given to the deceased from his doctor, of alcohol liver damage, that there was continued alcohol consumption. It therefore followed that the deceased did manifest three or more of the clinical criteria found within the definition of alcohol dependence.
36. Dr D'Ortenzio was taken specifically to each of the seven criteria within the definition and having regard to the history that he obtained and the material lodged in these proceedings, he expanded upon the findings recorded above and reaffirmed that the appropriate diagnosis was alcohol dependence (refer transcript, pp75-79).
37. In terms of the history of alcohol consumption obtained by Dr D'Ortenzio, and by reference to his reports, he noted that the deceased consumed small quantities of alcohol for about six months before he enlisted. Consumption occurred mainly on a social occasion and on weekends. After approximately six months of recruit training, consumption occurred frequently and heavily. He noted that the deceased consumed alcohol on a nightly basis and the history that he obtained was he would drink as much as he could fit in and would be intoxicated every evening (transcript, p80). When his basic training was finished he was transferred to Sydney where he waited for six months before he was deployed. During that time, because he had few activities to perform, he continued to drink on a frequent basis. On the second consultation with the deceased, he obtained a history of events that were suggested as provoking anxiety and alcohol had been used to mask it but it was not a history obtained at first presentation.
38. In both reports Dr D'Ortenzio recorded a history from the deceased of learning of the break up of his relationship whilst he was stationed in Sydney, before he travelled to Vietnam. He also recorded in his first report that the events in service in Vietnam as described to him were not frightening or traumatic and the deceased was not engaged in or observed combat. The witness was reassured of that opinion because it was his practice to ask veterans whether there were occasions where they would have felt frightened or that their life was at risk. Dr D'Ortenzio was confident that he would have asked those questions of the deceased and the responses that he obtained from the deceased were a denial of events of that type.
39. Dr D'Ortenzio volunteered that he had some handwritten notes, which were also referred to in his reports, which on examination appeared to be copies of a submission prepared by the advocate of the deceased and which had been lodged with the VRB. That document was not amongst the papers lodged with the Tribunal and Dr D'Ortenzio read it for the purposes of transcript. The notes refer to the deceased being terrified during a football game in Vietnam shortly after he arrived; being aware of dead and wounded being delivered to a Medivac helicopter base, in close proximity to his living quarters; being aware by that proximity of the danger of being located in a war zone; being accused of theft; observing fights between fellow servicemen; being accused of destroying a quantity of ice-cream; and being charged with neglect of duty. The history of alcohol consumption contained in that document was of the deceased being an occasional social drinker before enlistment but a significant increase in alcohol consumption after arrival in Vietnam with beer being available at 15 cents per can.
40. On the history given to him, and by reference to that document, Dr D'Ortenzio was not satisfied the deceased met the definition of experiencing a severe stressor within the 1998 Instrument for alcohol dependence. With respect to the 2009 Instrument for alcohol dependence, Dr D'Ortenzio was not satisfied that the deceased suffered a category 1A stressor or a category 1B stressor.
41. With respect to the SoPs concerning generalised anxiety disorder, Dr D'Ortenzio was taken to the DSM IV clinical definition of that condition found within the 2007 Instrument. At paragraph C, which records six symptoms, three of which must be satisfied in order to meet the definition, the witness said upon the history that he obtained, following direct questioning, none were satisfied (transcript, pp86-87).
42. On balance, he was not satisfied that the deceased satisfied any disorder other than for alcohol dependence. He noted, following discharge that the deceased gave a history of a sense of anxiety when he was in the company of other persons and a sense of having to prove himself but those features were progressing over four or five years and did not appear to be apparent to him or other persons prior to that period of time. Dr D'Ortenzio said there appeared to be emerging symptoms but he did not make any diagnosis of anxiety. On reflection he remained of the same opinion, although he acknowledged that his history may have been incomplete and said:
Whether I had the whole history and that history was different to what I had got previously, I'd be going on what I had at the time, he had some anxiety symptoms and . . . they were masked by alcohol, and there may have been more symptoms there that were obvious, but what was obvious, I didn't make any diagnosis of anxiety disorder.
43. In cross examination, Dr D'Ortenzio was referred to the conclusions recorded in his second report under the sub-heading of Mental Status Examination. He was satisfied that the deceased was able to function cognitively and did not exhibit affected memory. There did not appear to be any affect upon the capacity of the deceased to respond to questioning and the descriptions of day-to-day activities did not suggest that the deceased suffered any substantial distress. For example, whilst acknowledging some anxiety outside the Base in local streets, the deceased was always in the company of two or three other persons, he was not restricted nor did he restrict himself, life threatening risk was not apparent, he had been upset by the presence of helicopters that delivered persons who were wounded or killed but his sense of upset was transient and did not produce fears for his own life or death (transcript, p87-88).
44. On balance, however, Dr D'Ortenzio indicated that he would not draw any inference from any failure on the part of the deceased to mention some thing or some event to him during the two consultations. He said as a clinician, it sometimes requires many consultations with persons to obtain an accurate and comprehensive history and the more persons talk about events, the more likely it is that a comprehensive history will be obtained.
45. Dr D'Ortenzio said he obtained a history from the deceased of his relationship ending whilst he was in training that is, before he travelled to Vietnam. He also said he did not obtain any history from the deceased of his reactions to learning of his friend Frank Hunt becoming injured, despite specifically asking the deceased whether there were events that he continued to think of through his life and I didn't obtain any history of any events and I didn't obtain a history of that event specifically (transcript, pp89-90). Despite the absence of such a history, Dr D'Ortenzio acknowledged that event would be significant . . . if it had a reaction on him.
46. Dr D'Ortenzio did not have copies of the reports from Dr Walton but he agreed with one of his conclusions that the deceased did have a constellation of cognitive behavioural and physiological symptoms indicative of alcohol related problems. Having obtained a similar history to Dr Walton of excessive alcohol consumption prior to travelling to Vietnam, Dr D'Ortenzio agreed that a diagnosis of clinical worsening of alcohol dependence was certainly a consideration.
47. Dr D'Ortenzio acknowledged that he did not consider a definition of severe psychosocial stressor as defined in the generalised anxiety disorder Instrument of 2000 but said the ending of the deceased's relationship was essentially a divorce or a separation and it could be the equivalent of the examples given, as that condition is defined. If Frank Hunt was a close friend, the circumstances of learning of his injuries might also fit within the defined examples. The episode involving being strip searched in front of Vietnamese women might amount to a severe psychosocial stressor but Dr D'Ortenzio said that satisfying the definition would be dependent on the deceased's experience of the event and his perception of it.
48. Dr D'Ortenzio said establishing a causal relationship between service and alcohol dependence was difficult because the deceased, on the history that he obtained, was heavily consuming alcohol prior to the commencement of operational service. He noted that the amount of time spent by the deceased consuming alcohol prior to Vietnam was extensive but whilst he did not have a specific record of the number of hours and days occupied drinking alcohol, he did obtain a history that the deceased, especially whilst waiting in Sydney, did little else except drink and whilst he was in Vietnam, he just drank around his work. He acknowledged that there may have been an increase in the quantity of alcohol consumed after arriving in Vietnam but it was not a history that he had obtained. He did not obtain a history at first consultation of the deceased using alcohol to help him sleep but he did obtain such a history during the second consultation. Dr D'Ortenzio, on examination of his handwritten notes, acknowledged he did not specifically record when the deceased's relationship ended. He said he dictated his reports immediately after his consultation with the deceased and he was confident that the history that he dictated, and which was ultimately typed and found in his reports, was consistent with the history that he obtained from the deceased during consultation. He was also confident that the history that was reported of the commencement of heavy consumption of alcohol six months after enlistment and before Vietnam was accurate.
49. The witness agreed that it was possible that the cognitive capacity of the deceased was less than it was during first consultation. However, it was noted that the deceased provided a more comprehensive history during the second consultation.
50. Dr D'Ortenzio noted that Dr Percival obtained a history of the deceased taking part in patrols and being engaged in piquets and reacting to overhead firing. On that history, Dr D'Ortenzio agreed that those events might have contributed to the alcohol consumption by the deceased in Vietnam but it was not a history that he obtained. The events that were mentioned to him were not of a sufficient level of distress or reaction to support a finding of contribution to alcohol being consumed.
51. In re-examination Dr D'Ortenzio said the same diagnostic criteria for alcohol dependence found within the DSM IV definition would have been met in the case of the deceased six months before he travelled to Vietnam and when he was in Vietnam.
52. In concluding his examination, Dr D'Ortenzio said there was nothing that he had learnt from cross examination which would permit him to diagnose the deceased as suffering from an anxiety disorder. Rather, the history of symptoms suggested that the deceased had emerging symptoms of social anxiety.
dr percival
53. As referred to earlier, Dr Percival, a consultant psychiatrist, examined the deceased at the request of his lay advocate on 21 August 2006. His report is found at Exhibit A1 p88‑92. We have decided to summarise his report but the weight we will attach to it will be less than the weight we will attach to the reports and evidence of Doctors Walton and D’Ortenzio because:
(i)Dr Percival was not called and the failure to call him was not explained.
(ii)The contents of his report and the opinions he expressed were not tested in cross examination.
(iii)Dr Percival acknowledges, in his report, that the reasons for his consultation were not explained, and the reports of Dr Walton and Dr D'Ortenzio and the reasons of the VRB of a hearing in 2003 were supplied after the consultation concluded. (This review concerns a decision of the VRB of November 2006, not 2003).
54. In his report Dr Percival:
(a)summarised his observations of the history of alcohol consumption as recorded in the VRB decision and in the reports of Doctors Walton and D'Ortenzio. He reported that the doctors had a clear discrepancy of perception of the development of the veteran's use of alcohol. It will ultimately be a matter for us to make findings concerning the history of alcohol consumption but it would appear from the second page of his report that Dr Percival was alluding to the intellectual and cognitive capacity of the deceased and who he reported to be a poor historian;
(b)reported the deceased returned from Vietnam consuming greater quantities of alcohol than previously and being irritable and very anxious. He also reported the girlfriend of the deceased notified him, whilst he was in Vietnam, that she was ending their relationship;
(c)recorded the deceased participated in a game of football on his first day in Vietnam. It appears that was learnt from the contents of the reports of Doctors Walton and D'Ortenzio and the reasons of the VRB. The language of the report does not suggest the deceased spoke about it or his reaction to it. He reached the conclusion that it can hardly be seen as likely to create a significant and lifelong psychiatric disorder;
(d)recorded a history from the deceased of his accommodation being located 200 metres from a Medivac helicopter pad, which would not have given him a close and clear view of injured persons, it was a constant reminder that death and wounding were a real part of the overall Australian experience in Vietnam. He also reported the deceased being engaged, on a monthly basis, in night patrols, outside the perimeter of the base and his reaction to the experience of moving through the jungle at night. These combined events – observing Medivac casualties and night patrols were responsible for the subjective state of the deceased being edgy, frightened, nervous and scared. We note the VRB decision under review in these proceedings found on the basis of historical reports and concessions by the advocate of the deceased that the accommodation was located 600 metres from the Medivac pad and the Vung Tau base was surrounded by sand dunes and housing, not jungle (refer Txii);
(e)recorded a history from the deceased of alcohol being first consumed, prior to his eighteenth birthday and in the succeeding six months prior to enlistment of 3 or 4 7oz glasses of beer on Friday and Saturday nights. For two months prior to his departure to Vietnam he was drinking, most nights. Consumption continued at that level after arriving in Vietnam but progressively increased to between 8 to 10 375ml cans per night. On return to Australia he was drinking 15‑20 7oz glasses on week nights and 20‑24 glasses throughout the day on weekends. The deceased abstained from drinking 12 months prior to the consultation when he was diagnosed with cirrhosis or cancer of the liver. The deceased disagreed with a history taken by Dr D'Ortenzio and said he commenced drinking heavily in Vietnam;
(f)was satisfied the deceased suffered generalised anxiety disorder through the first three to four months in Vietnam, to which he responded by a progressive increase in alcohol consumption. Whilst acknowledging that objectively, his service experience was far less risk-laden than that of a combat infantryman . . . occasional patrols were undeniably more risky and threatening than the experience of growing up and living in Birchip in rural Victoria. The description of symptoms satisfied the diagnostic criteria of generalised anxiety disorder;
(g)was satisfied that persons consume alcohol to relieve anxiety and an anxious and vulnerable person will become dependent upon alcohol. It follows that persons who drink daily will not describe anxiety because it has been reduced by the alcohol consumed;
(h)was satisfied the deceased was alcohol dependent;
(i)concluded that the diagnosis of generalised anxiety disorder and alcohol dependence (in sustained remission for some 12 months) arose out of taking part in night patrols in the Vietnamese jungle which were identifiable occurrences causing a reaction of substantial distress; and
(j)was satisfied Instruments No.1 of 2000 and No 78 of 1998 were satisfied.
CONCLUSION AND REASONS FOR DECISION
55. Before any enquiry into the reasonableness of a hypothesis advanced on behalf of a veteran, there must be findings of the injury or disease. The diagnosis (or kind of injury or disease) is not to be found by a SoP, but by the medical evidence on the probabilities – refer Benjamin v Repatriation Commission [2001] FCA 1879 at [41]. In the present case the enquiry is necessarily directed towards the injury or disease in the assessment period commencing on 6 October 2005, when the deceased’s primary claim was lodged until his demise on 30 November 2006.
diagnosis/kind of injury or disease
Malignant Neoplasm of the Liver
56. The disability claimed on 6 October 2005 was metastatic bone disease @ S1 vertebrae. The Deputy Medical Officer of the DVA determined, having regard to a report completed by Dr Blum (Exhibit A1, p80) that the appropriate diagnosis was malignant neoplasm of the liver (Exhibit A1, p81).
57. The cause of death of the deceased was certified to be metastatic carcinoma of the liver – 1 year and primary carcinoma of the liver (Exhibit A1, p191). The Death Certificate of course is not strictly relevant in these proceedings because this application involves an enquiry into the kind of injury or disease of the deceased in his lifetime. Nonetheless there was little doubt from the medical evidence reviewed, and made available to us, that the deceased did suffer a primary carcinoma of the liver.
58. In a report of 28 October 2005 (Exhibit A1, p47), Dr Blum, the treating medical oncologist, diagnosed the deceased as suffering from a hepatocellular carcinoma with metastatic deposits to his skeletal system. That diagnosis was repeated in reports dated 2 November 2006 and 20 July 2006 to Dr Al-Haidary, the deceased's treating general practitioner immediately before his demise (refer Exhibit R6, p21 and p25).
59. The carcinoma in the liver of the deceased has also been variously recorded throughout the medical and clinical data in these proceedings as primary carcinoma of liver and metastatic carcinoma of liver (Birchip Hospital file, p8 and Death Certificate); hepatocellular carcinoma with bone metastases (Exhibit R6, p21); metastatic hepatocellular adenocarcinoma (Exhibit R6, p17).
60. Dr Davis, the Deputy Chief Medical Officer at Bendigo Hospital reported on 9 June 2007 that a liver biopsy in September 2005 found a hepatocellular carcinoma and bone biopsy on 7 October 2005 found an adenocarcinoma that is, the primary liver carcinoma had metastasised to bone.
61. We are therefore satisfied and find that the injury or disease of the deceased was primary hepatocellular (liver) adenocarcinoma with bony metastases. Therefore, Instrument No. 171 of 1996 applies because it concerns a primary malignant tumour arising from the cells of the liver.
Alcohol dependence
62. There appears to be little doubt that the deceased did suffer from alcohol dependence. We make that finding on the balance of probabilities having regard to the evidence of Doctors Walton and D'Ortenzio and by regard also to the contents of the report of Dr Percival. We are satisfied that either Instrument No. 1 of 2009 or No. 76 of 1998 applies.
Cirrhosis of the Liver
63. We are not satisfied that the deceased suffered from cirrhosis of the liver.
64. In a questionnaire completed on 22 July 2002, Dr McCallum recorded that the deceased did not experience the symptoms of cirrhosis of the liver (Exhibit A1, p44). The report of an abdominal ultrasound of 7 May 2002 (Exhibit A1, p232) records a suspicion by the radiologist that a cyst may be present in the liver of the deceased and a solitary metastasis cannot be excluded. No other abnormality is demonstrated within the liver. He recommended a CT scan which was undertaken on 16 May 2002 (Exhibit A1, p233). The report of the CT scan recorded No evidence of an abnormality is detected in the liver and further I am unable to detect the lesion described at ultrasound at this CT examination. The result of the CT scan appears to have been known to Dr Horton because in his clinical notes on 21 May 2002 he has recorded CT scan (illegible) a normal liver. Dr Horton completed a certificate on 21 November 1995 (Exhibit A1, p235‑236) and recorded early liver failure.
65. Dr Davis, the Deputy Chief Medical Officer of Bendigo Health, in a report of 19 June 2007 summarised the records held at his hospital and referred to the presence of the tumour with features of hepatocellular carcinoma and the metastatic lesion at S1. He also referred to pathology reports he had received from the Austin Hospital Liver Transplant Unit. Nowhere in his report has he identified any reference from any of the clinical notes to the deceased suffering from cirrhosis of the liver.
66. Dr Horton completed a questionnaire on 21 November 1995 (Exhibit R5) for a claimed condition of Hepatic Cirrhosis. He also recorded that there were no symptoms of note and the condition was not treated. His clinical notes do not refer to the condition before 21 November 1995 save for a recording on 2 May 1994 of Had tests, including LFT's having been taken but without recording the results. We cannot find that these references permit a finding of cirrhosis.
67. The Members of the VRB were alert to the absence of clinical data with respect to cirrhosis and raised this with the deceased’s lay advocate during the hearing of an earlier application on 21 May 2003 (Exhibit A1, p180). It would also appear from the transcript that the lay advocate of the deceased agreed with the observations of the VRB Members. In their written Reasons for Decision, published on the same day as hearing, the VRB decided that the material did not point to the deceased suffering from cirrhosis of the liver.
68. In a report of 22 November 2006 (Exhibit A1, p130), Dr Blum recorded that the hepatoma suffered by the deceased was likely to be secondary to cirrhosis. That opinion was not explained or supported within the body of his report nor can we find any reference in any of the other medical data to the deceased ever having been diagnosed with or treated for cirrhosis. The absence of support for a diagnosis of cirrhosis from any clinician, other than Dr Blum, does not permit us to make a finding on the probabilities that the deceased suffered from it. The opinion of Dr Blum is against the weight of all the clinical evidence and we are not prepared to make that finding.
Anxiety Disorder
69. We are not satisfied on the balance of probabilities that the deceased suffered from anxiety disorder. That condition was the subject of evidence by Doctors Walton and D'Ortenzio who, having regard to the condition as defined, were not satisfied that it existed.
70. Dr Walton found, on the basis of an earlier history obtained by Dr D'Ortenzio that the deceased suffered from social anxiety which was regarded as being a prominent feature. Whilst Dr Walton would have, clinically, diagnosed generalised anxiety disorder, he said such a description would not give the emphasis on the social component of it which was prominent. It was his opinion social phobic anxiety was within the anxiety disorder category clinically (transcript, p27). It was also his opinion that the deceased did not meet the threshold standard of the clinical definition of generalised anxiety disorder because on the history given to him, the deceased did not experience troublesome subjective anxiety more often than not (transcript, p32).
71. Dr D'Ortenzio did not make a diagnosis of anxiety disorder (transcript, p87) but observed that the deceased was exhibiting emerging symptoms of social anxiety. He was aware that Dr Walton later made a similar diagnosis and was satisfied, by reason of Dr Walton having seen him some years after Dr D'Ortenzio last saw him that those emerging symptoms would have manifested in the diagnosis that was ultimately made by Dr Walton.
72. We note that Dr McCallum, in his questionnaire of 22 July 2002 (Exhibit A1, p45) recorded the deceased suffered social isolation – withdrawn from public. The description and the comments he recorded are consistent with the opinions of Doctors D'Ortenzio and Walton in their diagnosis of social anxiety/phobia, being withdrawal, embarrassment and avoidance of public places.
73. We are not moved to adopt the conclusion of Dr Percival who diagnosed the deceased as suffering from generalised anxiety disorder. Without any disrespect to him, we note from his report he was not informed at the time of consultation of the reasons for assessing the deceased, he did not have access to any documented history, he was later provided with the report of Dr D'Ortenzio of 14 December 1999 (but not his second report) and the report of Dr Walton of 23 February 2004. The VRB decision made available to him followed a hearing on 21 February 2003 which related to a previous application. Dr Percival did not give evidence despite a request made by the respondent prior to the commencement of the hearing to have him available for cross examination. The history that he obtained related only to a limited number of events in service and the consideration of the clinical ingredients of the generalised anxiety disorder definition were either absent or superficially considered by him in the making of his diagnosis. We had the benefit of the reports of both Doctors Walton and D'Ortenzio and hearing their evidence both in chief and in cross examination which we regard as sound and to be preferred.
deledio
74. In order to determine whether the hypotheses raised by the deceased are reasonable, the four stages of analysis recited in Repatriation Commission v Deledio (1998) 49 ALD 193 provides a useful basis to determine whether SoPs exist, whether hypotheses are reasonable and whether we can be satisfied there is no sufficient ground to determine that the injury was war caused (s 120(1)).
75. The first two stages are satisfied because we are satisfied on the material made available to us that it points to hypotheses connecting disease with the service of the deceased veteran. We are also satisfied that there are SoPs in force with respect to the hypotheses concerning the liver cancer and alcohol dependence both at the date of delivery of this decision and within the assessment period. There will not be any consideration of the SoP with respect to cirrhosis of the liver or generalised anxiety disorder because we have found as a fact that those conditions did not exist (refer earlier). Nothing points to social anxiety/phobia having any connection with service, nor was any submission of connection argued.
76. With respect to the third stage of the Deledio analysis, we are satisfied that the hypotheses are consistent with the template within each of the applicable SoPs. Accordingly the following is the analysis required at the fourth Deledio stage, namely, determining on the balance of probabilities whether we can be satisfied that the incapacity of the deceased did not arise from a war-caused injury.
77. Having decided that the deceased was alcohol dependent and had also suffered from primary hepatocellular (liver) adenocarcinoma with bony metastases, the next enquiry in our view should be a determination of the clinical onset of those conditions. Whilst it might be thought that enquiry should be made at the third Deledio stage, that is, in order to determine whether the SoP template has been satisfied, such a finding would have also involved findings of fact which would, at that stage, be impermissible. Accordingly, a determination needs to be made on the probabilities of the occasion of clinical onset of each of the two conditions remaining in issue in these proceedings. When that finding is made, enquiry will then be directed to whether other specified events occurred within defined timeframes prior to clinical onset. Those issues will be discussed later.
clinical onset
78. Clinical onset exists when a finding is made on investigation which is indicative to a doctor of the disease being present (refer Re Robertson and Repatriation Commission (1998) 50 ALD 668; Lees v Repatriation Commission [2002] FCAFC 398; Repatriation Commission v Gosewinckel [1999] FCA 1273; Repatriation Commission v Cornelius [2002] FCA 750).
Clinical Onset – Alcohol Dependence
79. An examination of the documented material lodged in these proceedings recording the history of alcohol consumption of the deceased demonstrates many inconsistencies in the history that he provided.
80. In a questionnaire completed on 15 August 1995 (Exhibit A1, p42-43) the deceased recorded that he commenced to consume alcohol on a regular basis in 1969, to relieve tension and at that time he was drinking beer and spirits on two or three occasions per week and then on average at six x 200ml glasses approx on each occasion. He also recorded that there were periods when his alcohol consumption changed significantly to everyday. At the date of the completion of the questionnaire he was consuming beer daily and then at 12+ 200ml glasses. These recordings by the deceased are noteworthy because the first enquiry made by the questionnaire is identifying when he commenced consuming alcohol on a regular basis. He has answered 1969 when he would have been 22 years of age. The service material indicates that the deceased enlisted on 1 May 1968 and served in Vietnam from 2 April 1969. The recording of a solitary 1969 does not permit us to conclude, on the basis of the document alone, whether the regularity in consumption of alcohol commenced before or after commencement of operational service in South Vietnam.
81. We note that despite the deceased recording in the questionnaire that he was drinking more than twelve, 200ml glasses of beer daily, the history taken by Dr Horton in July 1997 records the deceased consuming 5 glass/night (Exhibit A1, p199). It is worthy also to note that in May 1991, Dr Horton was well aware of the deceased’s alcohol consumption because he then recorded cautioned re alcohol (Exhibit 1, p201). That warning was given four years before the questionnaire of August 1995 and the caution offered by the doctor was apparently unheeded.
82. Dr Percival took a history of the deceased first consuming alcohol shortly before his 18th birthday (which would have been in 1965) and in the six months prior to commencing National Service, the deceased consumed three or four seven ounce glasses of full strength beer on Friday and Saturday nights. In the period of two months before departing for Vietnam he was drinking four, seven ounce glasses of beer nightly. Some months after arriving in Vietnam the deceased had progressively increased his alcohol consumption and was drinking between eight and ten 375ml cans of full strength beer and on some occasions 12 cans. On returning to Australia, he was drinking 15 to 20, seven ounce glasses of full strength beer each weekday night and between 20 and 24 glasses during the day on Saturdays and Sundays. (Refer Exhibit A1, p90-91).
83. The history taken by Dr Walton resembles the history taken by Dr Percival although there are slight differences. The history taken during the consultation of January 2004 (Exhibit A1, p124-125) is commencing to consume alcohol at the age of 17 years and then at two glasses on Friday and Saturday nights but consumption doubled after enlistment. In Vietnam consumption increased to six cans of beer nightly and following discharge the consumption increased to 18 glasses of beer daily and at the time of consultation, the deceased was recorded as consuming more than 8 stubbies of beer per night during the week and 18 stubbies on weekend days.
84. Dr D’Ortenzio examined the deceased on two occasions the first being in November 1999 (Exhibit A1, p241-242). He recorded the history given to him of a modest consumption of alcohol prior to enlistment, confined to social occasions and on weekends. However, after about six months of recruit training the report records the history of the deceased attending a boozer every night with other recruits where he would then drink as much as he could fit in and would be intoxicated every evening. At the completion of basic training the deceased was transferred to Sydney where he waited for about six months with little to do and he then drank as frequently as possible.
85. In South Vietnam the history given was of the deceased attending a bar designated for US personnel from about 11 o’clock each day and then for three or four hours (consistent with a personal history recorded by the deceased in a letter found at Exhibit A1, p188-189). The history also recorded is of the deceased returning to the Vung Tau base and resuming drinking after evening meals.
86. To highlight the inconsistencies of the histories given by the deceased, Dr D’Ortenzio reported following a consultation in June 2002 (Exhibit A1, p250) that the deceased commenced alcohol consumption in Vietnam, unlike the history contained in his previous report of the deceased commencing heavy consumption of alcohol during recruit training at or about the time that the relationship with his girlfriend had ended (p241).
87. In an appearance before the VRB on 21 February 2003 (Exhibit A1, p171-173) the deceased was examined with respect to his alcohol history and specifically, he was asked to consider the report of Dr D’Ortenzio completed in 1999. The deceased denied that he was going to the boozer every night and also denied that he was drinking heavily but did acknowledge that he was having a few drinks. On closer analysis, the deceased acknowledged that he would have been attending the boozer on three or four occasions per week and on weekends, he would be drinking socially either at the beach or when playing cricket. He said, on the occasions he attended the boozer and on the occasions that he drank socially it would have been two or three (glasses). One of the VRB members then asked him to consider the questionnaire he completed in 1995 (Exhibit A1, p42-43) where he recorded that he had been drinking six, 200ml glasses on two or three occasions per week. The deceased then said … it could have been four, five, six, yes. Later he said it could have been six beers. It could have been four, five and when he was asked So what was it? He responded it could have been two. Later when he was asked to indicate his consumption during the weekends, the deceased said probably it was only five or six beers a night.
88. Applications involving an examination of a veteran’s alcohol history – no less when the veteran is deceased – are notoriously difficult. This application is no exception. As may be seen from the above, there are significant differences in the histories given by the deceased to the doctors and also emerging from his own recall – refer to his evidence to the VRB especially. Any expectation of obtaining an accurate history is probably unrealistic when an examination of alcohol consumption spans approximately 40 years. The difficulties that we face also presented a challenge to the medical practitioners. Dr Walton has referred in his second report (Exhibit R1, at [5]) to such a challenge. In our view the difficulty is also compounded by significant differences in the histories in the clinical data recorded by different practitioners within a short period of time. For example Dr Walton took a history from the deceased on 7 January 2004 (Exhibit A1, p124) of the current level of alcohol consumption being in excess of eight stubbies per night during the week and 18 on weekend days. Dr Al-Haidary recorded on 23 February 2004 – the following month – 6 or more standard drinks on one occasion; daily or almost daily (Exhibit R6, p18). We do not suggest that the deceased was attempting to mislead or be dishonest but rather there was carelessness in his response to questions asked of him.
89. Having regard to the above we are satisfied and find as a fact that the deceased did consume alcohol prior to enlistment and then in modest quantities on an irregular basis. We are satisfied that subsequent to enlistment, his consumption of alcohol increased in quantity and on a more regular basis, especially having regard to the histories taken by Dr D’Ortenzio and the evidence given to the VRB by the deceased. It follows that we are satisfied that subsequent to enlistment and before the commencement of operational service the applicant did have a pattern of heavy and sustained alcohol consumption.
90. Dr D'Ortenzio in his assessment of the diagnostic criteria for alcohol dependence was satisfied that the deceased was alcohol dependent before the commencement of his operational service. He was also satisfied that the deceased remained dependent in Vietnam (refer transcript, p97). He thought the dependency definition was satisfied by the deceased having met three or more of the defined criteria within the same 12 month period. However, when his evidence is reviewed (refer transcript, p97-98) some caution should be applied when making any finding and whether dependency could be found in any, or if so, which 12 month period and specifically whether dependency existed during operational service. Without any disrespect to Dr D'Ortenzio, he acknowledged that the history given to him was incomplete. It varied between both consultations and his clinical experience in diagnosing alcohol dependence or alcohol abuse was at odds with having to scrutinize, with some precision, each of the diagnostic criteria within the alcohol dependence definition. Counsel for the respondent submitted that the punctuation appearing within the transcript of the relevant evidence by Dr D'Ortenzio could either confuse or give an incorrect understanding of the evidence then being given. For our part, the answers to the questions put to Dr D'Ortenzio suggest that he was frustrated by the process of cross examination and re-examination in a legal process, far removed from his clinical practice.
91. Dr Walton conceded in evidence, despite the contents of his report, that the deceased was alcohol dependent, but he could not conclude when at least three of the defined definitional criteria manifested in the same 12 month period (refer his evidence at transcript, p37-40). He thought that dependence would have emerged five or 10 years after a pattern of medically injurious alcohol intake . . . (p37). On that basis dependence occurred after service concluded.
92. Dr Percival was satisfied that the deceased was alcohol dependent but did not make any finding in his report of the clinical onset of it. We are not able to make any inference or draw any conclusions from his report of when the dependence had its clinical onset. Dr Senadipathy examined the deceased (so far as we are aware) on one occasion only in November 1995 (Exhibit A1, p237-238) and concluded that the deceased suffered from alcoholism. We do not regard that report as helpful in assisting us to determine the issues presently under consideration. Additionally, an opinion expressed by Mr Freedman, a surgeon in Swan Hill on 14 April 1994 (Exhibit A1, p215) is also unhelpful in his reference to the deceased having a past history of alcoholism.
93. Dr D'Ortenzio did not express an opinion in his report nor in evidence of the clinical onset of dependency. Dr Walton thought the definition of alcohol dependence prohibited any accurate finding of clinical onset. Rather it would have occurred within a period of time (transcript, p44). He thought dependency would have existed when the deceased saw Dr Horton 10 years before 2004 (when Dr Walton first saw him) and when Dr Horton, in May 1994 cautioned re alcohol (Exhibit A1, p201).
94. Nothing therefore points with any degree of certainty to the occasion of clinical onset but as a probability we find that clinical onset of alcohol dependency occurred well after service concluded and consistent with the evidence of Dr Walton, in or about 1994. We think this finding is consistent with the conclusions in Re Robertson (refer earlier). Alternatively, clinical onset could be found in 1995 when Dr Horton completed a questionnaire (Exhibit A1, p202 and 235-236) where he recorded alcohol consumption was responsible for early liver failure.
95. On balance, therefore, the opinions of Dr Walton are preferred and we find the clinical onset of dependence would have been, at the earliest, in the mid-1990s and at the latest, at the consultation with him in 2004. That would be well outside the period of five years for the experiencing by the deceased of a category 1A or 1B stressor within the 2009 Instrument and outside the period of two years for the experiencing of a severe stressor within the 1998 Instrument.
96. In concluding this part, there is one other matter which emerged during the evidence. Dr D'Ortenzio was asked to consider whether there was a potential diagnosis of clinical worsening having regard to a perception drawn by Counsel for the applicant of a substantial escalation in alcohol intake during overseas service (refer transcript, p91). Dr D'Ortenzio in response referred to an exacerbation of alcohol dependence and made similar comments at page 9 of his first report (Exhibit A1, p247).
97. There was no submission made at the commencement of the hearing of any hypothesis involving clinical worsening, nor was it contended in the written submissions lodged following the conclusion of the hearing, save for paragraph 5.22.1 of the applicant's submissions, where there was a reference to substantial increase once he began serving.
98. Clinical worsening is not determined only by an examination of the quantities of alcohol consumed or a finding that there was an increase in the alcohol consumed. A finding of clinical worsening is a medical issue directed at satisfaction of the diagnostic or definitional criteria. Clinical worsening must be of the disease having the features, symptoms and manifestations prescribed in the definition within the SoP (refer Repatriation Commission v Milenz [2006] FCA 1436 at [33]). Finn J, at [34] also decided that the worsening is in the clinically significant impairment or distress which resulted from the maladaptive pattern of alcohol abuse and which, importantly for these proceedings, was manifested in one or more of the prescribed ways within a 12 month period.
99. Counsel for the applicant did not refer to this decision nor do his submissions construct a manner which would point to any evidence which would support a finding of clinical worsening as that expression has been decided by His Honour. For our part, having regard to the reports lodged and the evidence heard (as we have also read in the transcript), we can find no evidence which would point to clinical worsening.
100. We should also record that both SoPs with respect to alcohol dependence during the assessment period record that in the event of clinical worsening being asserted that there will need to be a material contribution or aggravation of alcohol dependence and where the dependence was suffered or contracted before or during relevant service but not arising out of it (refer 2009 SoP at paragraph 7 and 1998 SoP at paragraph 6).
101. The words and expressions material contribution and aggravation are the subject of discussion later in these reasons concerning the provisions within s 196B of the Act. We need say nothing further at this stage other than the conclusions that we will reach with respect to those provisions reinforce the conclusion we have reached above, namely, that we are not satisfied that there was any clinical worsening.
Clinical Onset – Liver Cancer
102. Factor 5(iv) of the SoP applying with respect to this condition compels a finding of whether the deceased consumed at least 150kgs alcohol . . . within any 10 year period before the clinical onset of malignant neoplasm of the liver.
103. On the basis of the report of Dr Davis (refer earlier at [58] and Exhibit A1, p259) the clinical onset of this condition was in either September 2005 when a hepatocellular carcinoma was found at biopsy or in October 2005 when the primary liver carcinoma had metastasised to the bone following a bone biopsy.
104. Whether the deceased was consuming at least 150kgs of alcohol within any 10 year period we think can be found in the period 1995 to 2005. As we have learnt from other applications where calculation of that quantity has been undertaken and, consistent with the submissions in these proceedings (refer respondent's submission at paragraph 49), a daily average of 4.1 standard drinks would result in 150kgs of alcohol consumed in a 10 year period. We are satisfied that quantity can be established in the period 1995 to 2005 having regard to the history of alcohol consumption summarised earlier.
105. In the questionnaire completed by the deceased on 15 August 1995 he was then consuming 12+ 200ml glasses daily. Dr Percival took a history in August 2006 of the deceased drinking 15 to 27 ounce glasses of full strength beer each weekday night and between 20 and 24 glasses throughout each day on Saturdays and Sundays. The history from Dr Walton in 2004 was of the deceased consuming eight stubbies of beer per night during the week and 18 on days during the weekend. Dr Horton had the relatively modest history of alcohol consumption at July 1997 of five glasses per night and in July 2002 the history then was of the deceased consuming six to eight stubbies per night (Exhibit A1, p208).
106. We think in the circumstances that there is an abundance of material which would permit us to find as a fact that in the 10 year period immediately prior to 2005 the deceased did consume at least 150kgs of alcohol.
section 196B(14)
107. Satisfaction of a factor or factors within a SoP alone will not suffice to establish a connection between service and injury, disease or death. Consideration must be given to s 196B(14) of the Act which provides that a factor causing, or contributing to an injury, disease or death is related to service rendered by a person only if at least one of the subsections is satisfied. The SoPs record factors that must exist as a minimum connecting service with injury, disease or death. Subsection 14 uses the word related and s 5Q(1B) uses the word relates. We think the distinction between the language of the SoP and the language of the Act is, for these purposes, immaterial.
108. In the present application we think that only subsections (a), (b), (d) and (f) as reproduced below are relevant:
(a)it resulted from an occurrence that happened while the person was rendering that service; or
(b) it arose out of, or was attributable to, that service; or
…
(d) it was contributed to in a material degree by, or was aggravated by, that service; or
…
(f)in the case of a factor causing, or contributing to, a disease—it would not have occurred:
(i)but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service; …
109. The expression an occurrence that happened was analysed by the majority of the Full Federal Court in Repatriation Commission v Keeley [2000] FCA 532 at [15-17]. The occurrence will have been the event or a number of events in service which is or are responsible for a consequent injury or disease (also refer Repatriation Commission v Money [2009] FCAFC 11 at [50]).
110. The expressions arose out of and was attributable to were the subject of detailed analysis by Toohey J in Law v Repatriation Commission (1980) 29 ALR 64 and the High Court on appeal in Repatriation Commission v Law (1981) 36 ALR 411. The expression attributable to involves an element of causation. It need not be the sole cause, but must be a contributing cause. Arising out of is satisfied by a less proximate causal relationship than caused by or resulting from (Law at p420). The relevance of those expressions to the operational service of the deceased and especially the events which were submitted as giving rise to the consumption of alcohol as referred to earlier will be discussed later.
111. The expression material degree was discussed by Davies J in Repatriation Commission v Bendy (1980) 18 ALD 144 at 146. His Honour decided that the expression refers to a contribution of a causal nature and any de minimis contribution which was tenuous or did not influence the events was immaterial and was to be ignored. More recently Finn J in Comcare v Sahu-Khan (2007) FCA 15 at paragraphs 15-17 (and in reference to Bendy) decided the expression in a material degree requires an evaluation of all relevant contributing factors for the purpose of asking whether the employees employment did or did not contribute materially to the suffering of the ailment. In Nelson v Comcare [2009] FCA 1149 Foster J discussed the concept of material contribution and aggravation, and by reference to other decisions of the Federal Court and decided that an ailment was aggravated if it was made more severe by the employment. For the purposes of this analysis we are satisfied that the word employment may be substituted for the word service as it appears in subsection (d).
112. The expression contributing as found within subsection (f) was discussed by a Full Federal Court in Comcare v Canute (2005) 148 FCR 232 where in the context of s 4 of the Safety, Rehabilitation and Compensation Act 1988 the expression contributing factor was referrable to the employment of an employee and whether exposure to a state of affairs contributed to a condition for which compensation was sought. It did not matter whether the contribution was of any particular size or degree. The word causing also appearing in subparagraph (f) is commonly understood in the English language and is given a meaning by the Macquarie Dictionary, which we adopt, of producing an effect; from which something results. It is our view that the word causing has a more direct or closely allied outcome than contribution.
113. We would not support a contention of the applicant’s representative that the consumption of alcohol during operational service in Vietnam by reason of army culture or peer group pressure or the ready availability of low cost beer (and on some occasions being free of charge) or consumption of it in a United States bar for three or four hours daily whilst waiting for transportation back to the Vung Tau base satisfies the provisions of s 196B(14). Those explanations for alcohol consumption are temporal and are not related to operational service by any occurrence that happened whilst rendering operational service or arose out of or was attributable to or aggravated or contributed in a material degree by the operational service nor by any factor causing or contributing to the disease of alcohol dependence. With regard to the history taken by Dr D'Ortenzio of the quantities and frequency of alcohol consumed at least in Sydney before the commencement of operational service, the deceased did no more than continue to drink substantial quantities of alcohol after the commencement of his operational service in Vietnam.
114. The deceased’s representative also relied on the Full Court decision of Repatriation Commission v Hawkins (1993) 117 ALR 225, where consideration was given to whether a veteran’s disease arose out of or was attributable to eligible war service. That decision with respect has no application for the present proceeding. It was decided before 1 July 1994 (when the SoP regime commenced) and was not determined by reference to s 196B(14) of the Act. It is worthy to note that in Hawkins the veteran commenced his smoking habit (which ultimately gave rise to the claim for an injury or disease) after the commencement of operational service, unlike the deceased in the present application who was consuming alcohol before the commencement of operational service.
115. Hawkins also involved consideration of a number of provisions within the Act which have no application to this review namely, consideration of whether the veteran rendered continuous full time service as modified by s 5(12)(a) (as it then was) and administrative arrangements prescribing whether veterans were allotted for duty.
116. In concluding this part we are not satisfied that the injuries or diseases sought to be accepted are related to the operational service rendered by the deceased. The enquiry under s 196(14) is not concerned with finding whether the injuries or diseases are war caused (refer Cunningham v Repatriation Commission [2009] FCA 1272 at [40]).
the hypothesis – statements of principles
Cancer of the Liver
117. In Repatriation Commission v McKenna (1998) 28 AAR 7 at [15-16] Goldberg J (subsequently affirmed by the Full Federal Court in McKenna v Repatriation Commission [1999] FCA 323) decided that a hypothesis upheld by SoP must have a connection between the disease or injury suffered and the circumstances of service. His Honour decided that the hypothesis:
Has to point to a connection which starts with the disease in respect of which the application is made and ends with the service. That connection will comprise a number of links or factors each of which must be upheld by a SoPs and if need be by more than one SoPs.
118. We have decided earlier that the deceased did consume at least 150kgs of alcohol within the ten year period between 1995 and 2005. We also decided that clinical onset of the liver cancer occurred in 2005. However, it does not necessarily follow, on those findings alone, that factor 5(iv) of the 1996 Instrument with respect to malignant neoplasm of the liver has been satisfied. There needs to be a connection between the liver cancer and the circumstances of service. We think that the necessary number of links or factors connecting the disease with service is absent.
119. The contentions of the applicant connecting the consumption of alcohol with service do not pay, in our opinion, sufficient regard to s 196B(14). Paragraphs (a), (b), (d) and (f), which we understand have application, do so only by the qualifying introduction to the subsection, namely, the relationship to service by the qualifiers found within the subsections must cause or contribute to the disease. That is to say, it is not sufficient for the deceased to assert that his consumption of alcohol gave rise to a requisite quantity of alcohol within a 10 year period without establishing, on the probabilities, that the alcohol consumption had a causal or contributory relationship with service. As we found earlier, it is our view that the relationship between service and the alcohol consumed cannot be elevated above a temporal relationship.
120. There is considerable evidence pointing to the deceased having consumed large quantities of alcohol on a regular basis before the commencement of operational service. There is no evidence from any of the doctors, apart from Dr Percival who was not called, associating the consumption of 150kgs of alcohol in the period between 1995 and 2005 with service. A contention within the Statement of Facts and Contentions lodged by the applicant was of alcohol being consumed in Vietnam by the deceased to help him sleep or to settle his nerves (refer Statement of Facts and Contentions 27 August 2009 at [4.11]). That contention was put in support of a connection between alcohol consumption and cancer of the liver. The contention that alcohol was consumed to settle the deceased's nerves would point to alcohol being consumed to relieve the effects of a generalised anxiety disorder, which we have found earlier does not, on the probabilities, exist.
121. The applicant also relied on the decision of Kattenberg v Repatriation Commission (2002) 73 ALD 365 (closing submissions at [5.22]). Emmett J considered the connection between a SoP, s 196B(2) and relevantly s 196B(14) of the Act. His Honour decided that smoking a requisite amount of cigarettes within a defined period of time would be related to service if smoking arose out of or was attributable or was contributed to in a material degree or was aggravated by service or would not have occurred but for the rendering of service by the veteran.
122. His Honour concluded that the Tribunal had interpreted the SoPs, then applying, as requiring smoking the requisite quantity of cigarettes to have been wholly attributable to the service. His Honour concluded that it would be sufficient to satisfy the SoP if there is shown to be a causal or contributory relationship between the specified number of pack years and service or if the factor would not have occurred but for the rendering of that service. Further His Honour decided (at [44]) that there should have been an examination of the possibility that the smoking of number of cigarettes was contributed to in a material degree by the service or that it would not have occurred but for the rendering of the service.
123. On closer analysis of the Kattenberg decision, it is noted that the veteran smoked modest quantities of cigarettes prior to operational service but increased the numbers of cigarettes that he did smoke considerably after operational service commenced.
124. As we have found earlier, the deceased, in the present proceedings, had a well established pattern of alcohol consumption commencing after enlistment and prior to operational service.
125. We could not conclude, having regard to that history that consumption of 150kgs of alcohol between 1995 and 2005, more than 35 years after operational service concluded, was related to service by a causal or contributory link. We could not be satisfied that the consumption resulted from an occurrence that happened while the person was rendering . . . service and accordingly s 196(14)(a) cannot be satisfied. (The reasons for that finding are recorded later). We cannot be satisfied that the consumption arose out of or was attributable to service (b) nor could we find that there was any contribution in a material degree or aggravation within the meaning of (d) when there is clear evidence of considerable quantities of alcohol being consumed before operational service commenced. Set against that background we do not understand how the consumption of alcohol in Vietnam was a contributory cause (refer Law), equally, we do not understand how there was any contribution to a material degree or an aggravation to consumption by service as those concepts were considered in Sahu-Khan and Nelson (refer earlier at [110-112]).
126. Whilst paragraph (f) involves similar issues considered above there is nothing, in our view, which would permit us to find that the consumption of alcohol would not have occurred but for rendering operational service or a change in his environment as a consequence of his operational service. The deceased had a well entrenched alcohol habit before operational service commenced. It was pursued in Vietnam. He did not consume alcohol because he rendered service or because he was in a changed environment as a consequence of service.
127. We will later discuss the events in service specifically contended by the applicant which gave rise to the deceased having suffered a category 1A or 1B stressors or him having experienced a severe stressor within the meaning of the applicable SoP with respect to alcohol dependence. Those conclusions should also be considered in the context of the findings we have made above.
128. In conclusion therefore we are not satisfied that factor 5(iv) exists as a minimum raising a reasonable hypothesis between the liver cancer and the service of the deceased.
Statements of Principles – Alcohol Dependence
129. In the SoP in force at the time of the hearing, the applicable factors were found at factors 6(b) and (c) namely, experiencing a category 1A or a category 1B stressor within five years before the clinical onset of alcohol dependence.
130. A category 1A stressor are defined at paragraph 9 as follows:
“a category 1A stressor" means one or more of the following severe traumatic events:
(a) experiencing a life-threatening event;
(b)being subject to a serious physical attack or assault including rape and sexual molestation; or
(c)being threatened with a weapon, being held captive, being kidnapped, or being tortured;
131. A category 1B stressor is also defined at paragraph 9 as follows:
“a category 1B stressor" means one of the following severe traumatic events:
(a) being an eyewitness to a person being killed or critically injured;
(b) viewing corpses or critically injured casualties as an eyewitness;
(c) being an eyewitness to atrocities inflicted on another person or persons;
(d) killing or maiming a person; or
(e)being an eyewitness to or participating in, the clearance of critically injured casualties;
132. The only other SoP operating within the assessment period was Instrument No. 76 of 1998 and the applicant relied on factor 5(b) namely:
(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse…
133. The expression experiencing a severe stressor is defined at paragraph 8 of that Instrument as follows:
“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.
134. We have made findings above with respect to the occasion of clinical onset of alcohol dependence. We have decided that it occurred in the mid 1990s or in 2004, at the latest ([94]). On the basis of that conclusion the applicant would be incapable of meeting the factors applying either within the 1998 or the 2009 Instrument because of the requirement to meet a qualifying stressor within either two or five years of clinical onset.
135. The only relevant stressors could be those which emerged during, or arose out of, service or, within two or five years of service and which were also related to service. It would follow therefore on the findings that we have made earlier that the applicant could not succeed in satisfying any factor under either Instrument.
136. In the event that it had been established that the clinical onset of alcohol dependence occurred within two or five years of the conclusion of service so as to bring the events in service within the timeframe prescribed by the Act, we would nonetheless conclude that none of the factors within each Instrument have been satisfied.
137. The applicant relied on a number of events. They have been recorded earlier. None of those events would satisfy the definition of a category 1A or 1B stressor.
138. The definitions of a category 1A or 1B stressor are recited in the applicant's closing submissions and it is noted that the same stressors and the same definitions appear in the Instrument No. 101 of 2007 concerning generalised anxiety disorder. It was submitted that the same considerations apply to satisfaction of those stressors with respect to meeting the alcohol dependence and generalised anxiety disorder Instruments.
139. We have decided earlier that the deceased did not suffer generalised anxiety disorder and that Instrument will not be considered. Equally the applicant's representative relied on the definition of a category 2 stressor found within the Instrument concerning generalised anxiety disorder and for the same reason it will not be considered.
140. It was contended that having been exposed to rocket fire and having living quarters in proximity to the helipad and being stripped searched amount to a life threatening event.
141. We do not understand how those events could amount to the experiencing a life threatening event nor was any submission put in support of that contention. In our view there is nothing life threatening about allied rockets passing overhead or having living quarters approximately 600 metres from a helipad where deceased or wounded soldiers would be taken to a field hospital. Equally, being stripped searched in the presence of Vietnamese women without any evidence of physical threat (as opposed to a sense of embarrassment) could hardly amount to life threatening.
142. No other submission was put of the deceased satisfying any other part of the definition of a category 1A stressor or any part at all of a category 1B stressor. If the absence of such contentions arose by a concession, either implied or actual, on the part of the deceased that satisfaction of those parts of each definition could not be met, we would respectively agree. Without reciting again each component part of each of the definitions, we are satisfied that none of the events relied upon by the applicant (with respect to the deceased) are satisfied. Additionally, it would be our conclusion that none of the events relied upon in service would be a severe traumatic event being a descriptor of the component parts of each of a category 1A and a category 1B stressor.
143. In concluding this part, we note the decision of Perram J in Hunter v Repatriation Commission [2010] FCA 145 delivered on 25 February 2010. His Honour decided at [22] that a Category 1A or 1B Stressor in the current PTSD SoP (in identical terms to the alcohol SoP) required the claimant to have come, in effect, face to face with some species of peril. That decision was delivered after submissions in the present application were lodged. We have not relied on it to support our conclusions above but rather, to bring it to the attention of the parties. It provides the most contemporary analysis of the meaning to be given to a Category 1A or 1B stressor and, as His Honour also decided, it is to be given a meaning quite distinct from the word confronted as interpreted in an earlier PTSD SoP (refer Woodward and Repatriation Commission (2003) 131 FCR 473 at 495).
144. Turning in conclusion therefore to the applicable factor within Instrument No. 76 of 1998 and the definition of experiencing a severe stressor, we note that it has been the subject of much analysis before the Full Court.
145. In Repatriation Commission v Constable [2006] FCAFC 102 raised different possibilities of interpreting the definition of experiencing a severe stressor and concluded that the second sub paragraph should be regarded as defining events which, if experienced, qualify as experiencing a severe stressor. Heery J in the decision which gave rise to this matter being remitted namely, Repatriation Commission v Norton [2008] FCA 1132 at [21] drew attention to the word might. By reference to the decision of Repatriation Commission v Stoddart (2003) 134 FCR 392 (which affirmed the primary decision of Mansfield J in Stoddart v Repatriation Commission (2003) 197 ALR 283), the definition of experiencing a severe stressor involves subjective and objective tests of application and the relevant event must also be one which the person (subjectively) perceived as involving a threat of death and which a reasonable person could (objectively) so perceive.
146. The Full Federal Court in Woodward upheld the primary decision of Mansfield J in Stoddart and agreed that the word experiencing as appearing within the definition should be constructed as having a subjective connotation, at least in part, and the event alleged to constitute the threat should be judged objectively from the point of view of a reasonable person in the position of the applicant experiencing it and was capable of conveying and did convey the risk of death or serious injury.
147. In Delahunty v Repatriation Commission [2004] FCA 309, Tamberlin J decided that the word stressor:
. . . denotes something which leads to stress. It is inherent in the notion of "stress" that there is a perception on behalf of an individual. The existence or extent of the stress will depend on each particular personality. This concept injects a subjective element into the determination.
148. Having regard to the events in service which were alleged as giving rise to the experiencing of a severe stressor, we cannot conclude that any of them arose out of the deceased experiencing, witnessing or being confronted with an event or events involving actual or threat of death or serious injury or threat to the person or persons or other person's physical integrity which event might evoke intense fear, helplessness or horror.
149. The football event would hardly fit within the definition. There was, it would appear, a degree of apprehension on the part of the deceased but we do not think that his reaction to that event can be put at any higher or other level.
150. The piquet duties and night patrols were the subject of comment by Doctors Walton and Percival. However, the deceased did not ever engage in jungle patrols because the base was surrounded by sand dunes (refer Txii). The deceased's accommodation was 600 metres from the Medivac Helipad and that observation could not amount to him having experienced, witnessed or being confronted with an event involving the actual threat of death or threat to other person's physical integrity. Arguably, that type of event had previously occurred and had given rise to the injuries which caused (other) persons to be brought to the field hospital.
151. Reference was made during the hearing to the deceased being exposed to rocket fire which was also an event referred to in the report by Dr Walton. There was an acknowledgement in the applicant's closing submissions at paragraph 5.29 that it was occurring some distance away, yet it was concerning to the deceased. The deceased himself referred to rocket fire in his letter of 24 September 2003 (Exhibit A1, p186-188) yet the only recording he made was a few times at night we would have rocket fire pass nearby. You could see, hear and feel this from our huts.
152. The deceased's description of the event where he was stripped searched is recorded in a letter that he wrote to his solicitor (Exhibit R7) where he described it as follows:
The event itself. I was taken to a back room and told to strip. About six girls would have been in the room at the time to check on how things were going. When I was dressed and told to leave the bar all the girls were still yelling at me. This is when the MPs came along and told me to piss off.
153. We cannot discern from that description that the deceased experienced a severe stressor as defined. There is not even a description that the applicant was under threat nor could we discern that the event might have evoked intense fear, helplessness or horror.
154. There was a suggestion that the deceased reacted to a letter that he received from his girlfriend advising him that their relationship had ended. In the letter of 24 September 2003 the deceased recorded:
About one month after being in Vietnam my girlfriend of three years wrote to say she wanted to break off our relationship. We had talked about getting engaged before I left but said we would wait until I came home in case something happened to me. We broke up.
155. It is impossible to discern from that description whether there was any reaction by the deceased to the contents of the letter and if so, what it was. At this stage it is worthy to note that only Dr D'Ortenzio had a history of the relationship between the deceased and his girlfriend ending but there is no recording of the reaction of the deceased to that event. Doctors Walton and Percival did not obtain a history from the deceased of that event.
156. Of significance we think is the persisting reliance by the deceased in his life time and by his representative of his reaction to learning of the injury suffered by his friend Frank Hunt. None of the psychiatrists obtained any history from the deceased of that event or his reaction to it. We find that surprising having regard to the reliance placed upon that event. Indeed Dr D'Ortenzio said he had a practice of asking veterans during medico-legal examinations to describe events at large and in the second report found within Exhibit A1 Dr D'Ortenzio recorded:
He did not describe any particular events that were frightening or traumatic for him nor did he see any combat service. There was no stage at which he felt at risk or in danger.
157. The injuries suffered by Mr Hunt were apparently serious and he was evacuated to Australia for further treatment. Even if it was concluded that the deceased experienced an event involving the threat of death or serious injury to another person's physical integrity (Frank Hunt) there is nothing in our view which points to that event permitting us to conclude that it might evoke intense fear, helplessness or horror. The deceased did not give a description of him learning of the injuries suffered by Mr Hunt. Having been told that he had been evacuated and was in a real bad way, the closest we can find of a description of his reaction to learning of those injuries was his recording, I often thought after that that if a friend from home could get killed or wounded it could also happen to me (Exhibit A1, p188).
158. In fairness to the applicant and without disrespecting the memory of the deceased and for reasons recorded earlier, the deceased was not alive at the time of these proceedings and therefore could not give evidence or explain the contents of his letter. In fairness also, he did record in concluding his letter (Exhibit A1, p190) I feel all of these have had an effect on my problem.
159. Despite that recording we are unable to conclude the events relied upon and recorded earlier, fit within or satisfy the definition of experiencing a severe stressor.
160. The other three events which might in the circumstances be regarded as peripheral namely, observing fights between servicemen, being charged with neglect of duty or being accused of destroying ice-cream should not only be dismissed as failing to satisfy the relevant definition but are not alleged in the applicant's Statement of Facts and Contentions. Only Dr D'Ortenzio had a history of those events and the VRB had a history only of the accusation of theft of ice-cream. Doctors Walton and Percival did not have histories of those three events.
161. We have found earlier that the hypotheses have failed because the deceased could not satisfy the clinical onset or worsening requirement over the SoP. For the reasons immediately above, we are also satisfied beyond reasonable doubt (refer 4th stage of Deledio analysis) that the deceased did not suffer incapacity by war caused injury or disease.
162. The decision under review is affirmed save that the description of liver cancer, namely, malignant neoplasm of the liver is amended and should, having regard to the evidence heard in these proceedings, be recorded as primary hepatocellular (liver) adenocarcinoma with bony metastases.
I certify that the one hundred and sixty-two [162] preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior Member
Dr Kerry Breen, MemberSigned: Olympia Sarrinikolaou
Legal Assistant
Dates of Hearing 22 & 23 October 2009
Date of submissions of Applicant 24 November 2009
Date of submissions of Respondent 8 December 2009
Date of Decision 27 April 2010
Solicitor for the Applicant Mr D De Marchi, De Marchi & AssociatesCounsel for the Respondent Ms J Macdonnell
Solicitor for the Respondent Ms C Madden, Australian Government Solicitors
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