PETER ALLEN and REPATRIATION COMMISSION
[2009] AATA 968
•18 December 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 968
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/1363
VETERANS’ APPEALS DIVISION ) Re PETER ALLEN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms Regina Perton, Member Date18 December 2009
PlaceMelbourne
Decision The Tribunal affirms the decision under review.
(sgd) Regina Perton
Member
VETERANS' AFFAIRS ‑ veterans’ entitlements ‑ alcohol dependence - whether war-caused - whether serious default or wilful act – decision affirmed.
Veterans' Entitlements Act 1986 ss 9(1), 9(3), 120(1)
Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission vGorton (2001) 110 FCR 321
Stoddart v Repatriation Commission (2003) 197 ALR 283
REASONS FOR DECISION
18 December 2009 Ms Regina Perton, Member 1. Peter Allen served in the Australian Army (the army) from 1 February 1967 to 31 January 1969. His service included a period in Vietnam from 27 November 1967 to 26 November 1968, which constitutes operational service under the Veterans' Entitlements Act 1986 (the Act).
2. Mr Allen suffers from a number of medical conditions, which the respondent has accepted as being war-caused. Accordingly, he has been receiving a disability pension at 80 per cent of the general rate. On 17 February 2006 Mr Allen lodged a claim for alcohol dependence to be accepted as a war-caused condition. His claim was rejected by the Repatriation Commission (the Commission) on 2 August 2006 Mr Allen sought a review of the decision by the Veterans’ Review Board (VRB). On 11 December 2007 the VRB affirmed the decision. On 1 April 2008 Mr Allen applied to the Tribunal seeking review of that decision.
ISSUES
3. The issues before the Tribunal are:
·Is Mr Allen’s alcohol dependence war-caused? If so:
·Does the exclusionary provision of s 9(3) apply?
LEGAL FRAMEWORK
4. Section 9 of the Act provides that:
9 War‑caused injuries or diseases
(1)Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war‑caused injury, or a disease contracted by a veteran shall be taken to be a war‑caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
(c)the injury suffered, or disease contracted, by the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d)the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war‑caused injury or a war‑caused disease;
…
5. Section 9(3) of the Act provides:
(3)Paragraph (1)(a), (b), (c) or (d) does not apply to an injury suffered, or disease contracted, by a veteran if the injury or disease:
(a)resulted from the veteran’s serious default or wilful act; or
(b)arose from:
(i)a serious breach of discipline committed by the veteran; or
(ii)an occurrence that happened while the veteran was committing a serious breach of discipline.
6. Causation questions such as these, where a veteran has rendered operational service, are addressed by applying the standard of proof in s 120(1) of the Act. That requires decision-makers to determine that an injury or disease is war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.
7. In the circumstances of this case, where Mr Allen has rendered operational service, the issue of whether the diagnosed conditions were caused by operational service is to be decided by reference to the four-step process identified by the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98:
1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP [Statement of Principles] determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
WHAT ARE MR ALLEN’S MEDICAL CONDITIONS?
8. The Commission has accepted that Mr Allen’s acne, lumbar spondylosis, tinea, peptic ulcer disease, chronic simple bronchitis, bilateral sensorineural hearing loss, bilateral tinnitus, tobacco dependence, non-melanotic malignant neoplasm of the right forearm and solar keratosis of face, forearms and legs are war-caused conditions.
9. The Tribunal is required to determine to its reasonable satisfaction whether Mr Allen suffers from any particular injury or disease (Benjamin v Repatriation Commission (2001) 70 ALD 622). There was no dispute, on the basis of the medical evidence, that Mr Allen suffers from alcohol dependence. Accordingly, the Tribunal finds that Mr Allen suffers from alcohol dependence.
IS ALCOHOL DEPENDENCE WAR-CAUSED?
10. Mr Allen said that he left school after year 10 and completed an apprenticeship as a carpenter before undertaking National Service with the army in February 1967. Mr Allen told the Tribunal that after recruit training at Puckapunyal he was trained in engineering and construction. He was then given jungle training and was deployed to Vietnam with 21 Construction Squadron. He was based at the Australian headquarters in Nui Dat, and was engaged in construction and engineering projects. Mr Allen stated that he was not involved in any military offensive to a significant degree, although the Tet offensive occurred during his service. He said that even though he did not come under direct fire, he occasionally heard the sound of mortars exploding nearby.
11. Although there were some events that made him somewhat anxious, Mr Allen described an event in 1968 which he found to be particularly stressful (the White Mice incident). One day during the period July to November 1968 he and a friend (Sapper S Sparkes) were on leave in Vung Tau and had been drinking. He said that they were walking around the bar and market area when they were buzzed several times by two Vietnamese men on motorcycles, who came close to Mr Allen with legs protruding in a threatening manner. Mr Allen explained that he became angry and struck one rider and Mr Sparkes struck the other. One man fell off his motorcycle and the other motorcycle crashed into the back of the first one. There was an uproar and confusion.
12. An officer of the South Vietnamese Police (known as White Mice) arrived, blew a whistle and fired his weapon at them. They fled the scene but were apprehended at gunpoint. A crowd formed around them. He said that he and his colleague reluctantly agreed to be placed in a jeep and were taken to the Australian Military Police, where they were held for more than one hour before being returned to Nui Dat. He said that he made a statement to the Australian Military Police, but to his knowledge the incident was not recorded by Australian authorities and he never heard any more about it.
13. Mr Allen said that he was frightened and upset, and feared for his life. Before the incident, he had been a moderate social drinker but the events on that day caused him to increase his alcohol consumption. When he returned from Vietnam he was a heavy drinker. He said that after discharge from the army he drank throughout his working career and still consumes about 12 pots of beer each day.
14. Under cross-examination Mr Allen agreed that he told the Veterans’ Review Board that on the day of the White Mice incident he and Mr Sparkes had been to several bars on a pub crawl and were intoxicated, although he said …we weren’t staggering drunk. He agreed that he had told the VRB that afterwards he was nervous and concerned that charges might be laid against him, and he was apprehensive about visiting the bar area of Vung Tau.
15. In a written statement dated 5 June 2006, Mr Sparkes said that he had read Mr Allen’s account of the White Mice incident dated about June 2006 and agreed with the accuracy of the contents.
16. In a written report dated 5 February 2009, Dr N Strauss, consultant and occupational psychiatrist, stated that he had no reason to doubt the claim that the experience was frightening for Mr Allen and that he was fearful for his life.
17. In a written report dated 3 November 2008, Dr A Sillcock, consultant occupational physician, stated that Mr Allen told her that he started drinking heavily in Vietnam and that his consumption increased after an incident there …in which three of his friends died, although I understand that he did not actually witness this. There is no mention of the White Mice incident in her report.
18. In a written report dated 25 March 2009, Dr R Horsley, occupational physician, stated that Mr Allen told her that he drinks 8 to 10 pots of beer per day and has done so since his army service. She noted that his alcohol intake has not varied greatly and that he believes it is controllable. There is no mention of the White Mice incident in her report either.
19. In a written report dated 9 September 2008 Dr W Glaser, consultant psychiatrist, stated that Mr Allen reported a number of distressing events in Vietnam, including the death of two friends, which he learnt about in March 1968, although he could not remember details about any effect of the incident on his alcohol consumption.
20. Dr Glaser noted that Mr Allen described the White Mice incident (which he said occurred in June or July 1968) as the most frightening one during his service. He told Dr Glaser that initially he was not concerned until he realised that the South Vietnamese Police were shooting at him, and he was also worried about the behaviour of the crowd that had gathered. He told Dr Glaser that his alcohol consumption increased after the White Mice incident, and conceded to Dr Glaser that he experiences gaps in his memory when he has been drinking and his memory and concentration are starting to slide. He denied to Dr Glaser that he has dreams about the incident.
21. Dr Glaser referred to the physiological effects of alcohol dependence (particularly memory “black outs”) and concluded that the relationship of the White Mice incident and Mr Allen’s alcohol use …is not entirely clear. He stated:
His wife is able to corroborate his own account in that his consumption of alcohol increased considerably following his return from Vietnam…
I note, however, some lack of clarity as to the extent of the contribution (if any) the “white mice” incident made to his alcohol consumption.
22. Dr Glaser said that the White Mice incident could reasonably represent a severe stressor if Mr Allen’s account is to be believed.
23. In a written report dated 24 March 2006 Dr B Kenny, consultant psychiatrist, stated that Mr Allen gave a history of light social drinking before his service in Vietnam, but that he …drank as much as he could while he was there, sometimes got drunk and said he was one of the heavier drinkers there and he drank to ease the tension. Mr Allen described the White Mice incident as being the only one in which he was actually frightened. Dr Kenny concluded that being in the war zone with its associated instability and traumas made Mr Allen more on-edge, although not actually frightened; and thus made a contribution to his substance dependence.
24. In a written report dated 2 June 2006, Mr I Hawke of Writeway Research Service Pty Ltd stated that if Mr Allen and Mr Sparkes were taken into custody by the South Vietnamese police this would have been a serious incident. It would have involved the Australian Military Police, who would have reported the matter to Australian authorities. Mr Hawke said that he could find no documentary evidence of such an incident.
25. Similarly, the Officer Commanding Mr Allen’s squadron had no recollection of the incident. He said that such a serious event would have been brought to his attention. Two former Australian Military Police officers told Mr Hawke that the incident was possible but unlikely. In a supplementary report dated 18 June 2008, Mr Hawke stated that the consensus among former Military Police he consulted was that the alleged incident was not plausible.
26. In relation to the first step from Deledio, after considering the evidence from Mr Allen and the psychiatrists about his alcohol dependence and operational service, the Tribunal determines that the material points to a hypothesis connecting the condition with the circumstances of the particular service rendered by Mr Allen. Therefore he satisfies the first step.
27. In respect of the second step from Deledio, there is an SoP in force, being Instrument No 1 of 2009 concerning Alcohol Dependence and Alcohol Abuse. Therefore, Mr Allen satisfies the second step. If Mr Allen does not satisfy that SoP, the Tribunal is required to consider SoP No 76 of 1998 concerning Alcohol Dependence and Alcohol Abuse, which has been revoked but was in force at the time Mr Allen made his claim (Repatriation Commission v Gorton (2001) 110 FCR 321). Therefore, he still satisfies the second step.
28. In relation to the third step from Deledio, the Tribunal has considered all the material, including the evidence from Mr Allen and from the medical practitioners. The Tribunal considers that the material points to the hypothesis linking Mr Allen’s operational service with his alcohol dependence. Therefore, Mr Allen satisfies the third step.
29. In relation to the fourth step from Deledio, the Tribunal must decide whether it is satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr Allen’s alcohol abuse was due to his operational service within the meaning of s 9 of the Act. It is at this stage that the Tribunal is called upon to make findings of fact. The claim will succeed unless one or more of the facts necessary to support the hypothesis is disproved or the truth of a fact inconsistent with the hypothesis is proved.
30. Factor 6 of SoP No 1 of 2009 provides:
…
(b)experiencing a category 1A stressor within the five years before the clinical onset of alcohol dependence or alcohol abuse; or
…
Paragraph 9 of the SoP provides:
"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;
…
31. Although Mr Allen was not involved in combat operations during his operational service in Vietnam, there were potential threats to his safety and at times he was apprehensive about his well-being. In relation to the White Mice incident, the Tribunal takes into account Mr Allen’s evidence that he and Mr Sparkes were intoxicated at the time; and that psychiatric evidence shows that his memory and concentration have diminished over time.
32. The Tribunal places little weight on Mr Sparkes’s statement. He was not asked to recall the incident in his own words. He merely read Mr Allen’s account in 2006 and agreed with the contents. Further, Mr Sparkes did not give oral evidence. Therefore, there was no opportunity for his statement to be tested in cross‑examination. In these circumstances the Tribunal finds that there is no credible corroboration of Mr Allen’s version of events.
33. Mr Allen’s history of his drinking in Vietnam, as described to various medical practitioners and the VRB, varies considerably. In particular he seems to have increased his alcohol consumption from March 1968 after hearing of the death of friends. This occurred before the White Mice incident, which appears to have occurred in about July 1968. Mr Hawke’s reports suggest that the White Mice incident was possible, although it would have been highly improbable.
34. Mr Allen did not mention the White Mice incident to Dr Sillcock or Dr Horsley. Dr Glaser referred to a lack of clarity about the contribution made by the incident to Mr Allen’s alcohol consumption. On balance, the Tribunal is satisfied that the White Mice incident did not occur in the way Mr Allen described, and that the event does not constitute a severe traumatic event as defined in the SoP, and was therefore not a category 1A stressor.
35. Consequently, the Tribunal is satisfied beyond reasonable doubt that Mr Allen does not satisfy factor 6(b) of SoP Nº 1 of 2009. Therefore, he cannot satisfy the fourth step from Deledio based on the current SoP concerning Alcohol Dependence or Alcohol Abuse.
36. Factor 5 of Instrument No 76 of 1998 concerning Alcohol Dependence or Alcohol Abuse provides for:
…
(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse;…
37. Paragraph 8 of Instrument No 76 of 1998 provides that:
“experiencing a severe stressor” means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i)threat of serious injury or death; or
(ii)engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;
38. In Stoddart v Repatriation Commission (2003) 197 ALR 283 Mansfield J stated at 296:
In my judgment the language of the definition of "experiencing a severe stressor" caters for the applicant experiencing or being confronted with an event or events that involved threat of death or serious injury, or a threat to physical integrity, if the event or events which are said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events, are capable of and did convey (that is, are subjectively experienced) the risk of death or serious injury or to physical integrity.
39. The Tribunal does not accept that Mr Allen meets the definition of experiencing a severe stressor in Instrument No 76 of 1998, based on the same reasoning set out in paragraphs 25 to 28 above concerning the current SoP.
40. Consequently, the Tribunal is satisfied beyond reasonable doubt that Mr Allen does not satisfy factor 5(b) of Instrument No 76 of 1998. Therefore, he cannot satisfy the fourth step from Deledio, based on the relevant SoP at the time of claim.
DOES THE EXCLUSIONARY PROVISION OF S 9(3) OF THE ACT APPLY?
41. In view of the Tribunal’s findings in relation to s 9(1) of the Act, there is no necessity to consider the application of s 9(3) of the Act with respect to whether Mr Allen’s alcohol abuse occurred or resulted from any serious default or wilful act, or whether the condition arose from a serious breach of discipline committed by him.
DECISION
42. The Tribunal affirms the decision under review.
I certify that the forty-two [42] preceding paragraphs are a true copy of the reasons for the decision of:
Ms Regina Perton, Member
Signed: …Dianne Eva
Clerk
Date of hearing: 5 August 2009
Date of decision: 18 December 2009
Advocate for the applicant: Mr D De Marchi
Solicitor for the applicant: De Marchi & Associates
Advocate for the respondent: Mr K Rudge
Solicitor for the respondent: Department of Veterans’ Affairs
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