Peters and Repatriation Commission
[2001] AATA 73
•6 February 2001
CATCHWORDS – VETERANS' AFFAIRS – whether death of veteran war-caused – whether reasonable hypothesis connecting death with war-service – whether consistent with statement of principle relating to substance abuse – whether reasonable – whether disproved beyond reasonable doubt – decision set aside.
Veterans' Entitlements Act 1986 – ss 5AB, 6A, 8, 13, 120, 120A, 196B,
Bushell v Repatriation Commission (1992) 175 CLR 408; (1992) ALR 30; (1992) 66 ALJR 753; (1992) 29 ALD 1
Byrnes v Repatriation Commission (1993) 116 ALR 210; (1993) 117 CLR 564; (1993) 67 ALJR 805; (1993) 18 AAR 1; (1993) 30 ALD 1
Cooke v Repatriation Commission (1998) 160 ALR 17; (1998) 52 ALD 1; (1998) 28 AAR 400; (1998) 90 FCR 307
Cowie and Repatriation Commission [1999] AATA 334 (unreported, S A Forgie (Deputy President) Brigadier IRW Brumfield and Dr JB Morley (Members), 19 May, 1999)
Ferriday v Repatriation Commission (1996) 42 ALD 526; (1996) 24 AAR 29; (1996) 69 FCR 521; (1996) 150 ALR 67
Reading and Repatriation Commission [2000] AATA 841 (unreported, S A Forgie (Deputy President), Captain E T Keane (Member), 20 September, 2000,)
Deledio v Repatriation Commission (1998) 47 ALD 261; (1997) 25 AAR 396
Repatriation Commission v Deledio (1998) 27 AAR 144; (1998) 49 ALD 193
Repatriation Commission v Keeley (2000) 31 AAR 150; (2000) 98 FCR 108
DECISION AND REASONS FOR DECISION [2001] AATA 73
ADMINISTRATIVE APPEALS DIVISION )
) D1999/12
GENERAL ADMINISTRATIVE DIVISION )
Re FLORENCE AGNES PETERS
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Miss S A Forgie (Deputy President)
Date 6 February, 2001
Place Brisbane
Decision The Tribunal:
1.sets aside the decision of the respondent dated 11 August, 1998 and affirmed by a decision of the Veterans' Review Board on 12 April, 1999; and
2.substitutes a decision that:
(1)the death of the applicant's husband, Terence James Peters, was war-caused within the meaning the Veterans' Entitlements Act 1986; and
(2)the respondent is liable to pay a pension to the applicant in accordance with s. 13(1) of the Veterans' Entitlements Act 1986 with effect from 3 May, 1998.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 25 May, 1999, the applicant, Mrs Florence Jean Peters, applied for review of a decision of a delegate of the respondent, the Repatriation Commission ("Commission"), dated 11 August, 1998. That decision, which refused Mrs Peters' claim for a widow pension, was later affirmed by a decision of the Veterans' Review Board ("VRB") made on 12 April, 1999.
At the hearing, Mrs Peters was represented by her solicitor, Mr Piper, and the Commission by its advocate, Mr Doube. The documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("T documents") were admitted in evidence together with additional material submitted by the Commission, Mrs Peters' affidavit, an extract from the Oxford Textbook of Medicine (3rd edition, edited by DJ Weatherall, JGG Ledingham and DA Warrell, 1996, Oxford University Press, Oxford, volume 3) relating to the management of withdrawal symptoms from drugs and alcohol, an extract from the ABC of Alcohol (3rd edition, edited by Alex Paton, 1994, BMJ Publishing Group, London) relating to peak concentrations and rate of removal, an extract from Healthy Devil On-Line (Duke University, 1997) relating to alcohol, a set of photographs and a report dated 13 August, 2000 by Mr Alan Richardson, Senior Scientist, Western Diagnostic Pathology. Oral evidence was given by Mrs Peters in support of her case and no evidence was called in support of the Commission's case.
THE ISSUE
The issue in this case is whether the death of Mrs Peters' husband was war-caused within the meaning of the Veterans' Entitlements Act 1986 ("VE Act").
BACKGROUND
On the basis of the evidence, I find that Mrs Peters' late husband, Mr Terence James Peters, was born on 4 August, 1928. He worked first as a ground steward for Qantas in Darwin and then as a tally clerk for the Port Authority. Mr and Mrs Peters were married in Darwin on 6 February, 1951. They had three children: Eleanor born in 1953; Gregory born in 1958; and Fiona born in 1965.
On 29 November, 1951, Mr Peters enlisted in the Australian Army. Mr Peters was then 23 years of age. From September, 1952 until September, 1953, he served in Korea where he took part in the Korean Campaign. During his service in Korea, he underwent driver training from 28 December, 1952 until 16 January, 1953. Mr Peters was discharged from the Army on 6 November, 1953. It follows that his operational service in Korea and Japan from 2 July, 1952 until 29 September, 1953 is eligible service within the meaning of the VE Act.
After his discharge, Mr Peters worked first for the Shell Company in Darwin as an aircraft refueller and remained there from 1953 until 1960. He then became a driller with Ausdrill in Western Australia for some two years and then a driller with Water Resources in Darwin. In 1967, he joined the Department of Construction in Darwin as a fitter. Mr Peters remained with that department for the next 11 years. In 1976, he was a fitter in its Water Supply Section at Two and a Half Mile .
On 21 December, 1976, he was instructed to repair a faulty pilot valve to the automatic inlet valve on the No. 3 water tower at Parap, which is a suburb of Darwin. The faulty valve had caused the water to overflow from the tank. The water tower was built in approximately 1939 and the top water level is some 98 feet from ground level. A person reaches the top of the water tower by a series of four vertical ladders and each is enclosed by ladder cages. The fourth and highest ladder section is the longest and is approximately twice the length of each of the lower ladders. There are three intermediate platforms. The platform at the foot of the fourth ladder is approximately sixty feet from the ground. The distance between that platform and the walkway on top of the tower is almost 42 feet.
In order to carry out his task, Mr Peters was accompanied by Mr Albert Nasir who climbed the water tower ahead of him. Mr Nasir began work on the inlet valve and pilot valve that were located in a recess with a platform. That platform was below the roofline of the tower and was located approximately 15 feet from the head of the top ladder. Mr Peters followed Mr Nasir up the tower. When he was on the fourth ladder, he fell on to the platform. No-one saw the start of his fall and so it is not known whether he had reached the top of the ladder before he fell. Mr Peters died.
Dr Irvine Hunter, a specialist pathologist, performed a post mortem on Mr Peters on 22 December, 1976. He found that Mr Peters had suffered haemorrhage in the nasopharynx and paranasal air sinuses, inhalation of blood, pulmonary congestion and a fracture of the shaft of his right femur. Of his other findings, I note that he found Mr Peters' liver to be of normal size. Dr Hunter concluded in his report of 16 February, 1977:
"The fall was evidently broken by some projection, which caused fracturing of the right femur. The modified fall on to the head caused concussion and unconsciousness (but no severe brain damage) and also haemorrhage from the nasal region. The unconsciousness allowed inhalation of blood to occur, which resulted in death." (Exhibit 2, folio 74)
An inquest was deemed to be unnecessary as the coroner considered that there were no suspicious circumstances (Exhibit 2).
Mrs Peters claimed a widows pension on 30 May, 1977 but her claim was rejected by the then Repatriation Board on 7 March, 1978. It rejected Mrs Peters' claim on the basis that her husband's death was not service-related (Exhibit 2, folios 78-79). Mrs Peters appealed to the Commission against that decision and did so on 5 June, 1978. Her appeal was disallowed by the Commission on 31 July, 1978 (Exhibit 2, folio 99). It was disallowed on the basis that there was no evidence that Mr Peters' fall was related to his alcoholic habits or to a nervous disability, which may be related to his war service (Exhibit 2, folio 101).
THE EVIDENCE
Mr Peters' history prior to his serving in Japan and Korea
Mrs Peters
Mrs Peters said that she met her husband in or about August, 1950. Mrs Peters has never consumed alcohol at all. Her husband had been required by his father to go to work when he was 13 years of age. He worked in woolsheds in the early years and she felt that he would have been exposed to alcohol at that time. While they were courting, she never saw him drunk and knew him to be only a social drinker. He never consumed spirits. He could have a social drink and it meant nothing and had no consequences. That continued to be the case after their marriage. Mrs Peters described her husband as a gentle and caring partner who was never violent towards her.
After his enlistment at the end of 1951, Mr Peters was transferred first to Pakapunyal, then to Sydney and then to Liverpool. Early in 1952, Mrs Peters visited her husband's mother in Sydney so that she could see both her husband and his mother. She then lived with his mother for a few months. During those months, her husband would visit each weekend. She did not notice any increase in his consumption of alcohol during that period.
Documentary material
The medical history sheet completed on his enlistment, showed that Mr Peters had undergone a tonsillectomy in 1935 and had suffered malaria in Rabaul in New Guinea in 1948. On the statement he made on 12 August, 1965 in support of his life assurance application, Mr Peters had been asked whether he had "… ever resided, or engaged in war service, in any other country? (b) Was your health affected as a result? If so, give particulars." Mr Peters had replied "(a) Yes 1946-49 Resided in New Guinea (b) No" (Exhibit 2).
Mr Peters' experiences during his eligible war service
Mrs Peters
In her affidavit, Mrs Peters said that her husband frequently wrote to her while he was in Korea but he did not discuss his war service or what he was involved in. After he returned, her husband suffered a recurring nightmare that would cause him to wake. He told her that he was reminded of being back in the war zone but he never went into any detail of what had disturbed him. Mrs Peters said that Mr Peters could talk to a mate, who lived across the road and who had been in the Navy, as well as to another, who had been in Japan. How could he talk to her, she asked, when she would not know what he was talking about.
On only one occasion did he talk to her about his experiences in Korea and it happened like this:
"I do remember looking at his photos of Korea with him one night. He showed me a photo of a body. He told me that he used to collect bodies during cease-fires and that he had to sew them into bodybags. This was the only occasion on which he discussed this with me. I could tell from the way he was speaking that it affected him deeply. He said that he needed a bottle of whiskey to get through it." (Exhibit A, paragraph 37)
A bundle of 11 photographs was admitted in evidence. They were taken by Mr Peters and showed various aspects of his service in Korea. One of them showed a body in an advanced stage of decomposition. (Exhibit E) In oral evidence, Mrs Peters said that her husband had told her that he needed to drink half a bottle of whisky to blot out the reality of what they were doing and it went from there.
Mrs Peters recalled:
"… overhearing my husband talking to Bill Storer about his war service on a number of occasions. I recall him talking about his unit being attacked. I recall him saying that his unit had been attacked with explosives and that he was afraid of being hit by bullets. I recall hearing him say that a bomb had exploded near him and that he had been knocked out because of it." (Exhibit A, paragraph 35)
Mrs Peters described the events on the night before her husband died:
"… Two of his friends came around to our house at about 4.30pm. Bill Storer was one and another was a fellow named Peter. Peter was an old army friend who lived across the road. Bill left at about 6pm and Peter stayed until about 10.30pm drinking and smoking with my husband. I recall that as the evening wore on, I went outside. I recall that I was wary of him that evening as he was consuming a large quantity of beer as he would particularly do when he was drinking with friends. When his friend left, I went and watched television until I was sure he was asleep, as I was wary of him. When he was asleep, I went to bed. By the fact that I was wary of him, and estimating broadly, I would say that he would have consumed at least 12 bottles of beer that evening. The bottles which he drank were about the same size as a modern day 'stubbie'. The beer would have been full strength as they did not have light beer in those days." (Exhibit A, paragraph 38)
In its decision, the VRB has noted Mrs Peters' as telling it that "… on the day before his death her husband had been drinking with two of his mates at home between 4.30pm and 8pm. After his mates left he continued to have a few more cans of beer." (T documents, page 8). In cross-examination, Mrs Peters said that she would not have been sure of the time but that it would have been later than 8.00pm. When her husband went to bed so did she. Until she was sure that he was fast asleep, she kept out of harm's way. When asked whether he had drunk 12 bottles of beer, she said that he would have had to drink a lot for her to be aware that she needed to be careful. He had finished drinking by 10.30pm. When asked if she had counted the bottles, Mrs Peters replied that it was very difficult to count them. She was not present while they were being consumed but had been outside the house. Her husband, she believed, had to have consumed a great deal in order for him to be intoxicated. Had he only drunk a few, he would have been amicable. She could not recall if she had put the bottles out and she did not know how many he had consumed and how many his friends had. Mrs Peters said that she went on "patterns" of her husband's behaviour but both his mates were quite heavy drinkers.
Mrs Peters described her husband as being very quiet on the morning of his fall. He had black tea and a cigarette but neither had an alcoholic drink nor anything to eat. He left for work at about 7.15am but, before he did, he went out of his way to say goodbye to their daughter, Fiona, who was in her room. His saying goodbye was, Mrs Peters observed, very unusual.
Mr Edward Jones
Mr Edward Jones served in the Army with Mr Peters during the Korean Campaign. In an undated letter that accompanied Mrs Peters' most recent application to the Commission, he described Mr Peters' service:
"T.J. Peters enlisted in the Northern Territory As (sic) a volunteer for Service in the U. N. Police action in Korea as is confirmed by his Regimental No 7/400007 He arrived in Korea about July 1952 His first assignment was with Charley Coy 3rd Bat RAR serving as a rifleman for about 8 months during which time he made a name for himself as he participated in many and varied patrols at times he volunteered for patrols because he believed some of the man (sic) detailed for some jobs needed more time to learn the skills required for a particular job.
During January of 1953 he was moved from Charley Coy to H Q Coy Transport where he finished the war out driving supply Trucks A job for which a special medal should have been struck
In the latter part of the Pacific Campaign Terry Served with the American Small Ships transporting supplies in the vicinity of New Guinea and New Britain until the end of the war. …" (T documents, page 27)
Mr Jones had also written a statement in support of Mrs Peters' earlier application to the Commission. That statement was dated 2 June, 1978. He referred to his having served with Mr Peters in Korea and of his visiting Mr Peters to talk about his drinking to excess after he lost his position with the Shell Company for which they both worked. Mr Jones said that Mr Peters:
"… told me he was having bad dreams about an incident in Korea of which I had knollege (sic) It happened about November 52 Terry on contact patroll (sic) with 6 other men had reached down an embankment to assist a soldier to climb up The other soldier had fallen back & rolled into a dry creek bed. In the fall he had discharged his owen gun drawing fire from a Chinese patroll (sic) near by. Terry had blamed himself for the insident (sic). …" (Exhibit 2, folio 96)
Mr Peters' medical history on his discharge
Documentary material
The report of the Final Medical Board completed on 29 November, 1951 noted that he had suffered from gonorrhoea in the past but recorded that he "Feels quite well – no complaints" (T documents, page documents, page 19). He had full movement of all of his joints and movement was painless.
Mr Peters' behaviour after his discharge
Mrs Peters
Mrs Peters returned from Sydney to live with her own family in April, 1952. Her husband was sent to Korea in July, 1952 and she did not see him again until his discharge from the Army in November, 1953. When he returned to Darwin, he seemed to her to be a completely different person. In her first application in 1977, Mrs Peters described him as returning from Korea "changed and morose and had a real problem settling down to civilian life. He could not stand noise or crowds at all and avoided city life." (Exhibit 2, page 3 of statement) She also described him as "… extremely highly strung and suffered dizzy turns." (Exhibit 2, page 3 of statement) In response to a question as to whether her husband had suffered from any accidents, illnesses or injuries during his service that might have had a relationship to his death, Mrs Peters wrote:
"Veteran was affected by a severe nervous complaint as a legacy of his service." (Exhibit 2, page 3 of statement)
Earlier in her statement, she had written:
"Before and since discharge on 6/11/53 veteran suffered from a severe nervous complaint causing stomach ulcers, dizziness and shaking.
Veteran also had an alcoholic problem which he tried very hard to control and had almost succeeded in its control." (Exhibit 2, page 1 of statement)
Mrs Peters said that she had not given a great deal of detail about her husband's drinking and behaviour in her application in 1977 as she had not wanted to dishonour her husband. At the time, she had wanted to hide all her experiences from everyone and it was not until later that she felt that she could talk about it. When asked in cross-examination as to why she had not said more of her difficulties in her earlier application, Mrs Peters said that she felt that it was just not right to say that her late husband was a practising alcoholic. To do so was harder than just saying that he was a war veteran. She thought that she would receive a favourable response without having to go into all of the details. Mrs Peters did not want anyone to think that her husband, who was a war veteran, was an out and out scoundrel. She did not want people to think that she had been married to a person like that.
In her recent affidavit, Mrs Peters described her husband as showing:
"… no interest in our baby daughter Eleanor. He seemed very distant. Whereas once he was bright and friendly and he now appeared quiet and serious. At other times he was irritable and would fly off the handle easily.
18.He began drinking frequently. He would go to hotels with friends to drink. Most often he went to the Vic Hotel in Smith Street.
19.He did not manage to get a job and began drinking during the day and would frequently spend whole days at the hotel. Often he would not come home for two or three days and would offer nothing more by way of explanation than the fact that he had been drinking. He refused to discuss it further.
20.During this time we were living with my mother. We stayed there for about 3 months after his return. After this we bought some land at Fannie Bay. We living in a shed on our land for about 18 months until our house was built.
21.By this time my husband always had beer in the fridge. He drank at home and during the times that he was at home he would drink beer continually in the evening until retiring to bed. His pattern of going out on two or three day binges also continued throughout this period." (Exhibit A)
In giving her evidence, Mrs Peters said that alcohol was used to cope with both the past and the present. The past would come up and so would the alcohol. One drink was not enough and a thousand were too many. He changed in his very nature. Living with her husband was like living with Dr Jekyll and Mr Hyde. Alcohol aggravated him after it had subdued him.
Mrs Peters spoke of the occasion on which her husband shot himself. She believed that he had attempted to commit suicide.
After the gunshot incident, Mr Peters worked as a driller for two different companies. Both required him to work "out bush" and away from Darwin for long periods of time. When he left for one of the trips, she said, "… he always took alcohol, usually spirits and usually whiskey …" (Exhibit A, paragraph 23). If he were desperate, he drank her lemon essence. She said that she was concerned about his excessive consumption of alcohol and told him so. Even when he was based at the Water Supply Section 21/2 Mile and was not required to work away from Darwin, she said, her husband's drinking continued. He joined Alcoholics Anonymous in approximately 1967.
Mrs Peters described her husband's behaviour towards her and their children:
"28. When drinking my husband was frequently violent and aggressive toward myself and out (sic) children though this was not always the case. Sometimes he could drink and not seem to (sic) adversely affected by it. The more he drank the more wary of him I was. If he only consumed 5 or 6 alcoholic drinks I was not greatly concerned for myself or my children however if he consumed more than this I began to become wary of how he might react and the more he consumed the more wary I became.
29.I was assaulted by my husband on numerous occasions. I received medical treatment on many occasions. I suffered broken ribs, facial lacerations, bruising and soft tissue injuries on many occasions." (Exhibit A)
In 1967, Mrs Peters left Mr Peters and took their children with her. She and the children lived with her mother. She said that she contacted Alcoholics Anonymous and understood that it sent someone to speak with her husband. It sent Mr Alan Barclay and then Mr Bill Storer to see her. Mr Peters then stopped drinking for approximately two years and she moved back with him. While he was not drinking, she thought that things were "reasonably happy" for them all.
Mrs Peters said that the late Mr Bill Storer was a friend of her husband's. He was also a veteran and a member of Alcoholics Anonymous. When Mr Storer experienced marriage difficulties, he began to drink again and so did her husband. Mr Peters never stopped drinking again before his death. He would drink every night, she said, and would begin drinking before work. What she described as his "aggressive and violent behaviour toward …[her] and the children continued." (Exhibit A, paragraph 33) Mrs Peters believed that her husband was drunk all of the time. She disagreed with the statement made in 1978 by Mr Jones that her husband had stopped drinking when he last saw him in August, 1976. He had not stopped and there were many nights when she had to get him up and dress him to go to work.
Mrs Peters described an occasion when she had to call on Mr Storer to help her. Mr Peters pointed a gun at her through a window. She hopped in the car and rang Mr Storer to help her. Mr Storer and her husband had a great bond and would sit and talk for hours about various matters. They would support each other with drinking and stories. So too did her husband and his other friend who lived across the road. Mr Peters also went to her mother's house with a gun. Her son feared for his life and on many nights his father had chased him down the road.
Mr Edward Jones
Mr Jones said that he worked with Mr Peters for 31/2 years when they were both employed at the Shell Company. This occurred after they had both served in Korea in 1952 and 1953 and both had been discharged. At the time he was working with the Shell Company, Mr Jones said, Mr Peters had been drinking to excess. This was inconsistent with his past behaviour. When he talked to him about his drinking, Mr Peters told him about the dreams he was having and which I have described above (see paragraph 14).
In his 1978 statement, Mr Jones also described a particular occasion on which he had found Mr Peters drinking excessively:
"On one ocasion (sic) in depressed state & drinking heavily Terry had tried to destroy him self in the bedroom of his home in Darwin. We had just entered the house after I had purswaded (sic) him to come away from the hotel where he had been crying and talking about the insident (sic) in Korea He went to his rook to put a bottle away which he had purchased at the hotel on leaving. I was standing in the lounge & heard the sound of a rifle breach opening. I opened the door & rushed in pulled the barrol (sic) from his mouth. As it discharged the bullet hit him in the shoulder I took him to the Darwin Hospital where we reported the incident as an accident. I last saw Terry Peters in about August 1976 He was not drinking but he looked thin & sick I asked him about the old probelm (sic) He told me the ghost was alive as ever but drink was not the answer. I asked him again as I had on many ocasions (sic) to get medical help He told me I was the only one that knew about it appard (sic) from a soldier by the name of Gruden who died in Korea & wanted it to stay that way Terry had served with the Americans on small ships arround (sic) New Guinea & New Britton (sic) during the Pacific War (note his date of birth)
He was an outstanding soldier & that was the opinion of every one who served with him. …" (Exhibit 2, folios 94-95)
It is apparent from a personal statement that Mr Peters made in connection with a life assurance proposal (dated 12 August, 1965) that the gunshot incident occurred in 1958. In his statement, also dated 12 August, 1965, Mr Peters said that he had to have a .22 calibre rifle bullet removed from his left shoulder after a rifle accidentally discharged. (Exhibit 2)
Mr Albert Nasir
Mr Albert Nasir worked with Mr Peters at the time of his fall and had done for some six years before that. In a statement received by the VRB on 26 March, 1999, Mr Nasir said that Mr Peters often spoke about his time serving in Korea. Mr Peters also had "a problem with drinking" but had told him that he was attending meetings of Alcoholics Anonymous. (T documents, page 40)
Alcoholics Anonymous
A statement by "Paul" of the AA Wednesday Hospital Group, dated 25 March, 1999 and bearing a stamp of the Darwin Central Service Office of Alcoholics Anonymous stated that Mr Peters became a member of Alcoholics Anonymous in 1967 (T documents, page 41).
The records of the Darwin Hospital show that Mr Peters was admitted overnight in December, 1975 after he fell over whilst drunk and broke his left ring finger. They also showed that he was admitted in May, 1964 for acute neck strain and in June, 1972 for treatment for alcoholism. (Exhibit 2)
The Board of Inquiry established to investigate the causes of Mr Peters' death recorded that he:
"… was a small man physically who lived quietly and was a family man. Most opinions heard were that he appeared to be in good health, although statements have also been heard that this was not the case in more recent times." (Exhibit 2, folio 25)
Life assurance application
In his personal statement in support of his life assurance application dated 12 August, 1965, Mr Peters described himself as a "moderate beer drinker" (Exhibit 2). In the later questionnaire dated 12 December, 1976, Mr Peters described himself as drinking "Beer. Socially. Moderate" in quantities of 52-65 ounces per day (Exhibit 2). Earlier in the later questionnaire, Mr Peters had stated that he had not suffered from any mental or nervous complaint.
Cause of accident
Initial report into accident
A minute by the Regional Safety Officer dated 24 December, 1976 stated that the Department of Construction did not consider that it had contributed to the accident although the ladder and cage could be upgraded to comply with the relevant Australian Standard. It was not known whether the cause of Mr Peters' fall "… was due to human error, medical condition, accidental tripping or overbalancing into the Ladder Cage …" (Exhibit 2, folio 5)
Report of the Board of Inquiry into Mr Peters' death
A Board of Inquiry under the auspices of the Department of Construction was appointed to inquire into Mr Peters' death. It described the water tower, and that Mr Peters wore safety boots (noted by the specialist pathologist as having composition rubber soles (Exhibit 2, page 76), issue shorts and shirt but not a hard hat. He was working as a member of a pair. The Board of Inquiry considered that the working conditions and procedures were satisfactory. A hard hat would have been desirable in the circumstances but there is no evidence that lack of it contributed to the accident. The Department of Construction, it noted, had encouraged its employees to use personal protective items and it referred to an internal memorandum from the Regional Safety Committee dated 27 October, 1976 (Exhibit 2, folios 21, 43 and 17-18). That memorandum set out hard hats, goggles, gloves and footwear as examples of such items and advised staff how to obtain them and to receive a subsidy for their purchase.
The Board of Inquiry also examined the ladders and platforms and assessed them against the relevant Australian Standards for such items. It recommended that the fourth and highest ladder be made into two and that they be staggered, the existing handrails at the top of the water tower be modified to comply with Australian Standards and that a trip hazard at the head of the highest ladder be eliminated. The Regional Safety Manager also recommended to the Board of Inquiry that a device known as a "Saf-T-Climb" be attached to the ladders on the water tower. That is a positive locking device consisting of a steel safety rail, a safety belt and a down rail. The device locks instantly into the rail's nearest notch if a climber were to lose his or her footing. (Exhibit 2, folios 43-47) The Board of Inquiry expressed the view that a Saf-T-Climb would have saved Mr Peter's life but did not make a clear recommendation about its installation. Instead, it recommended that the Department of Construction examine factors such as its acceptance by users and the enforcement of its use.
The Board of Inquiry also raised whether the Department of Construction should arrange regular health check ups for workers who were exposed to hazardous situations. It made no recommendation on the subject.
Witnesses to events surrounding Mr Peters' death
Nobody witnessed Mr Peters' death but there were those who saw him shortly before he fell or while he fell. Mr Jones was a supervisor in the Water Supply Section 21/2 Mile and it was he who detailed Mr Peters and Mr Nasir to repair the valve at the water tower. When he did so at some time after 7.30am on the morning of 21 December, 1976, he thought that both men appeared to be in good health. Mr Peters was a capable employee and experienced in the type of work he was asked to do.
Mr Nasir said that the water tank had been overflowing when he and Mr Peters arrived at approximately 7.50am. There was "mud everywhere" (Exhibit 2, folio 10) and he knew from the presence of the mud that the automatic piston valve had jammed. He climbed to the top of the ladder and started work on the valve. Mr Nasir went to call Mr Peters to ask him to check the inlet valve but saw that he had already started to climb the ladder. Some 10 minutes later, he heard the highest ladder shaking against the tank. He looked over and saw Mr Peters lying on the third and final platform.
Ms Lyn Callinan saw Mr Peters falling when he was about 10 feet from the final platform. She had been driving to work at the time. After he hit that platform, she had to look back at the road and did not notice if he moved. She thought that Mr Peters had fallen feet first but could not be certain. (Exhibit 2, folios 57 and 58).
Evidence as to the impact of blood alcohol content on behaviour
Mr Piper tendered a report prepared by Mr Alan Richardson with Mr Peters' history in mind as well as extracts from two text books and one on-line site. Having heard all of the evidence, it seems to me that the extract from the Oxford Textbook of Medicine does not take the matter any further and I have not had further regard to it.
Mr Alan Richardson
Mr Alan Richardson, who is the Manager – Workplace Drug Testing Services at the Western Diagnostic Pathology, prepared a report in response to specific questions asked of him by Mr Piper (Exhibit F). His qualifications include a Bachelor of Science degree majoring in biochemistry, microbiology and pathology. He has a Master of Science degree and a Postgraduate Diploma in Medical Technology.
In so far as Mr Richardson could respond to Mr Piper's questions regarding Mr Peters' blood alcohol, he wrote:
"2) In your view, is it plausible that Mr Peters had alcohol in his body at the time of the accident, and if so, in your opinion how much, and the basis for your opinion. It is known that in an average male of approximately 70kg, a standard drink (defined as containing 10g of ethanol) will add approximately 0.020% to the individuals a (sic) blood alcohol level. In addition, metabolism of alcohol occurs at a rate of 0.016% per hour in health individuals (this is the rate of metabolism that is used to back calculate blood alcohol concentrations by the WA Police Force). It has also been described that chronic alcoholism can, in some individuals, increase the rate of metabolism by up to 30% to a level of 0.021%. The rate of alcohol metabolism will then fall if significant liver damage occurs due (sic) the alcohol consumption or due to other factors. In the case of Mr Peters, it is stated that he consumed 12 stubbies of full strength beer on the night before his death. A stubby of full strength beer contains 1.5 standard drinks so essentially, Mr Peters consumed 18 standard drinks at this time. The calculations from this point on are relatively simple. 18 standard drinks will raise the blood alcohol to 0.360% in the absence of any metabolism. The time elapsed between initiation of consumption and the time of death (1630 hrs – 0800 hrs) was 15.5 hrs. The first 0.5 hours can be ignored from the point of view of metabolism since no significant metabolism would occur during this time as absorption of the alcohol has not occurred to a significant extent. Consequently, during the 15 hours during which metabolism was occurring Mr Peters is likely to have metabolised between 0.240% and 0.315% (depending on whether 0.016%/hr or 0.021%/hr is used as the rate of metabolism). It can then be deduced that at the time of Mr Peters (sic) death, his blood alcohol is likely to have been between 0.120% and 0.045% depending on his rate of metabolism. In my opinion, it is not possible to reliably estimate Mr Peters (sic) rate of metabolism from the information provided concerning his level of alcohol consumption. However, it should be remembered that the upper limit of alcohol metabolism (0.021%/hr) is an extreme and it is likely that Mr Peters (sic) rate of metabolism was lower than this limit.
3)Is it plausible that the fact of his being an alcoholic would have impacted on the rate of expulsion of alcohol from Mr Peters (sic) system, and if so have you taken this into account. As discussed in the previous section, chronic alcoholism can improve the rate of metabolism of alcohol by up to 30% and this has been taken into account in the calculations in the previous section. The final figure of 0.120% assumes normal rate of metabolism of alcohol and the figure of 0.045% assumes a 30% higher rate of metabolism.
4)If it is the case that Mr Peters is likely to have had an amount of alcohol in his system at the time of the accident, can you comment on whether the fact of alcohol in his system may have impaired his judgement, concentration or motor-sensory co-ordination. It has been demonstrated that individuals have an exponentially increasing risk of accident with increasing blood alcohol levels. It has been shown that an individuals risk of an accident is approximately 2 times normal at a blood alcohol level of 0.050%, 5 times normal at a blood alcohol level of 0.080%, 25 times normal at a blood alcohol level of 0.120% and 50 times normal at a blood alcohol level of 0.180%. In the case of chronic alcohol consumption, individuals develop a level of tolerance for the effects of intoxication, which can enable them to appear to be less intoxicated than would be expected from their blood alcohol concentration. However this does not significantly change their risk of an accident since reaction times, decision making ability and hand-eye coordination are still impaired to a similar level. Based on the data above that would suggest that Mr Peters (sic) blood alcohol concentration at the time of his death was in the range of 0.045% to 0.120%, it is my opinion that Mr Peters (sic) judgement, concentration and motor-sensory co-ordination would have been significantly impaired.
5)Irrespective of whether there was a likely blood alcohol concentration in Mr Peters (sic) system at the time of the accident, are you able to comment on whether: a) symptoms of 'hangover' were likely to have impacted upon his judgment, concentration or motor-sensory co-ordination, or, b) symptoms of 'hangover' may in general terms possibly affect ones (sic) judgment, concentration or motor-sensory co-ordination. It is likely that Mr Peters would have been suffering the effects of a 'hangover' due to a number of factors related to his alcohol consumption the night before. It has been shown that excessive alcohol consumption can produce disturbed sleep, dehydration, gastrointestinal disturbances and other physiological disruptions which can commonly produce a set of symptoms including fatigue, headache, nausea and vomiting, excessive sweating, tremors, diarrohoea (sic) and tachycardia. As with most syndromes, most subjects do not exhibit the full range of possible symptoms however, it is my opinion that it is likely that Mr Peters would have exhibited some of these symptoms and these would have been likely to have a detrimental effect on his judgment, concentration and motor-sensory co-ordination." (Exhibit F)
Duke University Healthy Devil On-Line
The extract from the Duke University Healthy Devil On-Line noted that alcohol first affects the frontal lobe of the brain that controls functions such as judgement and social inhibitions. It included a chart setting out the effect of a person's blood alcohol level on his or her thinking, feeling and behaviour:
Blood Alcohol Level Alcohol's Effects on Thinking, Feeling and Behaviour
.02-.04 Few obvious effects; slight intensification of existing moods; some impairment of judgment or memory
.05-.06 Feeling of warmth, relaxation, mild sedation, exaggeration of emotion and behaviour; slight increase in reaction time, impaired judgment about continued drinking; visual and hearing acuity reduced; slight speech impairment; minor disturbance of balance.
.07-.09 More noticeable speech impairment and disturbance of balance; impaired coordination; feeling of elation or depression; definite impairment of judgment and memory; major increase in reaction time; may not recognize impairment. Legally intoxicated at .08 BAL.
.10-.13 Noticeable disturbance of balance; uncoordinated behaviour; major increase in reaction time; increased impairment of judgement and memory.
.14-.17 Major impairment of all physical and mental functions; difficulty in standing, talking, distorted perception and judgment; cannot recognize impairment.
.20.25 Confused or dazed; major body movements cannot be made without assistance.
.30-.35 Minimal perception and comprehension; general suspension of cognitive abilities
.40 Unconscious/coma.
.41+ Deep coma/death
(Exhibit D)
The extract continued by noting that tolerance may play a part in the effect of alcohol on the functions described in the table. Tolerance, however, is an indication of the body's adjustment to regular drinking and is a warning sign of alcohol abuse.
ABC of Alcohol
The ABC of Alcohol stated that, in health, alcohol is removed from the blood at a rate of approximately 15mg/100ml/hour. There is, however, a great deal of individual variation. The rate of metabolism is accelerated in heavy drinkers unless they have liver damage. In that case, it may fall to a rate less than a quarter of the normal rate. The article also observed that the risk of accidental injury increases as the concentration of alcohol in a person's blood increases. It increases even at the level of 30mg/100ml and at 80mg/100ml is more than doubled. At 160mg/100ml, it increases more than tenfold. (Exhibit C)
LEGISLATIVE FRAMEWORK
Section 13(1) of the VE Act provides that, subject to the Act, the Commonwealth is liable to pay a pension by way of compensation to the dependants of a veteran if the veteran's death was war-caused. The amount of that pension and the terms under which it is payable are determined by the VE Act.
Provisions relevant to a consideration of whether the conditions are war-caused
A veteran's death is taken to have been "war-caused" if it meets one of the criteria specified in s. 8. In so far as this case is concerned, only s. 8(1)(b) is relevant. It provides that:
"… the death of a veteran shall be taken to have been war-caused if:
(a) …
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; …"
The expression "eligible war service" is defined in s. 7 of the Act. For the purposes of this case, it is sufficient to note that s. 7(1)(a) provides that a person who has rendered operational service is taken to have rendered eligible war service while he or she was rendering operational service. There is no question in this case that, as a member of the Army, Mr Peters rendered operational service, and so eligible war service, while he rendered continuous full-time service outside Australia during World War II. That is the effect of s. 6A of the Act.
The standard of proof which must be used in determining whether or not a veteran's death is taken to be war-caused is set out in s. 120. That section sets out two standards but, as Mr Peters had operational service only that in s. 120(1) is relevant. It provides:
"Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination."
Section 120(3) deals with the situation in which the Commission must be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining, among other matters, that the death was war-caused. It provides:
"In applying subsection (1) ... in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person."
Section 120(3) must be read with s. 120A of the Act. In so far as it is relevant, it provides that:
"For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) ...;
(b)...
that upholds the hypothesis." (s. 120A(3))
Section 120A(4) provides that s. 120A(3) does not apply if the Repatriation Medical Authority ("RMA") has neither determined a SoP under s. 196B(2) nor declared that it does not propose to make such a SoP in respect of the particular death or injury in issue.
The RMA must prepare a SoP in situations prescribed in the Act. In respect of cases to which ss. 120(1) and (3) apply, it has the following role:
"If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a) operational service rendered by veterans; or
(b)peacekeeping service rendered by members of Peacekeeping Forces; or
(c)hazardous service rendered by members of the Forces;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d)the factors that must as a minimum exist; and
(e)which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service." (s. 196B(2))
Section 196B(14) defines the concept of "related to service" in terms consistent with those used in s. 9 for the definitions of "war-caused injury" and "war-caused disease" and of "war-caused death" in s. 8. In so far as this case is concerned, only s. 196B(14)(b) is relevant. It provides that:
"A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(b)it arose out of, or was attributable to that service;"
"Sound medical evidence" has the meaning given in s. 5AB(2)
(s. 5AB(1)):
"Information about a particular kind of injury, disease or death is taken to be sound medical-scientific evidence if:
(a)the information:
(i)is consistent with material relating to medical science that has been published in a medical or scientific publication and has been, in the opinion of the Repatriation Medical Authority, subjected to a peer review process; or
(ii)in accordance with generally accepted medical practice, would serve as the basis for the diagnosis and management of a medical condition; and
(b)in the case of information about how that kind of injury, disease or death may be caused - meets the applicable criteria for assessing causation currently applied in the field of epidemiology."
The manner in which the provisions of ss. 120(1) and (3) inter-related prior to the introduction of SoPs was considered by the High Court in the cases of Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 116 ALR 210. In Byrnes, Mason CJ, Gaudron and McHugh JJ summarised the approach to be adopted in applying those sub-sections:
"The position may be summarised as follows:
(1) First, subs(3) of s120 is applied: do all or some of the facts raised by the material before the commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point.
(2) If a reasonable hypothesis is established, subs(1) of s120 is applied. The claim will succeed unless:
(a)one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or
(b)the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis." (page 215)
In relation to the first step, their Honours had earlier said:
"The statement in Bushell that the material must point to some fact or facts which support the hypothesis means no more than that the material before the commission must raise some fact or facts which give rise to the hypothesis. When that fact or those facts have been identified, the question for determination is whether the hypothesis is reasonable. In Bushell, Mason CJ, Deane and McHugh JJ said:
'… a hypothesis cannot be reasonable if it is "contrary to proved scientific facts or to the known phenomena of nature." [Commissioner for Government Transport v Adamcik (1961) 106 CLR 292, at 306] Nor can it be reasonable if it is "obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous'.
In some cases, the hypothesis may assume the occurrence or existence of a 'fact'. That itself does not make the hypothesis unreasonable. So, in the present case, the appellant's hypothesis is not unreasonable simply because it assumes that the appellant sustained a severe injury when he dived into a swimming pool in Townsville, notwithstanding that the materials before the commission did not reveal the extent of the injury which he then suffered." (page 214)
The SoPs were introduced after the High Court's judgement had been handed down. The manner in which ss. 120(3) and (4) inter-relate with the provisions of a SOP was considered by Heerey J in Deledio v Repatriation Commission (1998) 47 ALD 261. An appeal from his judgement was dismissed by the Full Court of the Federal Court (Repatriation Commission v Deledio (1998) 27 AAR 144, Beaumont, Hill and O'Connor JJ). After considering the structure of the Act and its various amendments and the judgements of the High Court in Bushell v Repatriation Commission and Byrnes v Repatriation Commission, his Honour concluded:
"Therefore when s 196B(2) says a factor 'must ... exist' and 'must be related to service', it is not interfering with the functions of ss120(3) and 120(1). On the contrary, the RMA is to identify the minimum factors which can connect the particular kind of injury etc with the circumstances of the particular kind of service (operational etc). If there is more than one factor the RMA is to determine which of them (or whether all of them) must be related to the circumstances of the service (see above). The particular claim then has to fit the template laid down in the SoP. The Byrnes methodology is applied. Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is:
(i) contrary to proved or known scientific facts,
(ii)obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or
(iii)(since 1994) inconsistent with (not upheld by) an applicable SoP.
If the hypothesis is reasonable the claim will succeed unless:
(iv)one or more facts necessary to support it are disproved beyond reasonable doubt; or
(v)the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.
At no stage is there an onus of proof on the claimant. If one of the disputed facts happens also to be a component of an SoP then the commission must disprove that fact beyond reasonable doubt, just like any other relevant fact. For example, in the present case the factors in the SoP include 70 gm/day consumption for at least 20 years. As it happens there was no dispute in the present case that the veteran's intake in fact was of this order. But if the commission were to deny this, then s 120(1) requires the commission to prove beyond reasonable doubt that the veteran's intake was in fact less than the SoP level. Put another way, the SoP system does not have the effect that some of the facts relevant to a claim, viz those facts which coincide with factors set out in an SoP, have to be proved by the claimant. Such a view would be inconsistent with the retention of ss 120(1) and 120(3) in the face of the Baume committee's recommendations [in its report entitled "A Fair Go: Report on Compensation for Veterans and War Widows"]. Still less do the 1994 amendments have the effect, as happened in the present case, that the claimant has to prove all the facts raised by the hypothesis." (page 275)
In its judgement on appeal, the Full Court of the Federal Court summarised the course which must be followed in cases involving a SoP. It said:
"… we would restate the course which the Tribunal is to take in a case, such as the present, (ie one involving a claim to be decided after the 1994 Amendments) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person as follows:
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 determined by the Authority under s 196B(2) or (11) of the 1986 Act. If no such SoP is in force, the hypothesis will be taken not 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 s 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." (pages 159-160)
The Statements of Principle
At the time the Commission made its decision on 11 August, 1998, SoP 5 of 1994 ("SoP 5") applied in relation to psychoactive substance abuse or dependence and SoP 15 of 1994 as amended by SoP 225 of 1995 ("SoP 15") applied in relation to post traumatic stress disorder ("PTSD"). For the reasons I gave in Reading and Repatriation Commission [2000] AATA 841 (unreported, S A Forgie (Deputy President), Captain E T Keane (Member), 20 September, 2000), it seems to me that I am bound by the SoPs in force at the time of the Repatriation Commission's decision. This is consistent with the judgements of the Full Federal Court in the earlier case of Repatriation Commission v Keeley (2000) 31 AAR 150.
Psychoactive substance abuse or dependence
The RMA begins SoP 5 with a recital that there is sound medical-scientific evidence that indicates that psychoactive substance abuse or dependence can relate to operational service as well as other specified service. It defines "psychoactive substance abuse or dependence" as:
"… a maladaptive pattern of use, attracting ICD code 303 or 304, that is indicated by either:
(a)continued use of the substance despite knowledge of having a persistent or recurrent social, occupational, psychological or physical problem that is caused or exacerbated by use of the substance; or
(b)recurrent use of the substance when use is physically hazardous (for example, driving while intoxicated)". (clause 4)
SoP 5 states that, before it can be said that a reasonable hypothesis has been raised connecting psychoactive substance abuse or dependence with the circumstances of the veteran's service, there must exist as a minimum the veteran's:
"(a) experiencing a stressful event prior to the clinical onset of psychoactive substance abuse or dependence, and maintaining the abuse or dependence post-service; or
(b)having a psychiatric condition prior to the clinical onset of psychoactive substance abuse or dependence; or
(c)…
(d)…
(e)…" (clause 1)
The factors must be related to service rendered by the veteran (clause 2).
The expression "stressful event" is defined to mean "… an incident in which there were external stimuli (such as combat) that would result in psychological stress, and where there were subjective symptoms of increased stress". (clause 4)
Post traumatic stress disorder
The RMA begins SoP 15 with a recital that there is sound medical-scientific evidence that indicates that PTSD can be related to operational service as well as other specified service. It defines PTSD to mean:
"... a psychiatric condition meeting the following description (derived from DSM-IV):
(a)the person has been exposed to a traumatic event in which:
(i)the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii)the person's response involved intense fear, helplessness, or horror; and
(b)the traumatic event is persistent re-experienced in one or more of the following ways:
(i)recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii)recurrent distressing dreams of the event;
(iii)acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv)intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event;
(v)physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and
(c)persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i)efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii)efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii)inability to recall an important aspect of the trauma;
(iv)markedly diminished interest or participation in significant activities;
(v)feeling of detachment or estrangement from others;
(vi)restricted range of affect (eg, unable to have loving feelings);
(vii)sense of a foreshortened future (eg, does not expect to have a career, marriage, children, or a normal life span); and
(d)persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
(i)difficulty falling or staying asleep;
(ii)irritability or outbursts of anger;
(iii)difficulty concentrating;
(iv)hypervigilance;
(v)exaggerated startle response; and
(e)duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b),(c) and (d) is more than one month; and
(f)the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning." (clause 4)
SoP15 states that, before it can be said that a reasonable hypothesis has been raised connecting PTSD with the circumstances of the veteran's service, there must exist as a minimum the veteran's:
"(a) experiencing a stressor prior to the clinical onset of post traumatic stress disorder; or
(b)experiencing a stressor prior to the clinical worsening of post traumatic stress disorder; or
(c)inability to obtain appropriate clinical management for post traumatic stress disorder." (clause 1)
THE SUBMISSIONS
The substance of the hypothesis upon which Mr Piper relied at the hearing is that Mr Peter's death arose out of, or was attributable to, his loss of judgement due either to the level of alcohol in his blood at the time of his fall from the water tower or to his suffering from a "hangover". In either case, his loss of judgement was as a result of excessive consumption of alcoholism on which he was dependent. Mr Peter's excessive consumption of alcohol, the hypothesis continues, is attributable to his having experienced a stressful event prior to the clinical onset of his abuse or dependence upon alcohol.
On behalf of the Commission, Mr Doube conceded that Mr Peters suffered from problems related to alcohol abuse but did not concede that his alcohol abuse had any connection with his operational service in Korea or that Mr Peters suffered from PTSD. If he did suffer from PTSD, it was not caused by his service in Korea. There is no reference in his discharge papers to Mr Peters' having experienced any stressful event and no abnormalities were detected. He had already been consuming alcohol when he commenced his operational service and Mrs Peters had made no connection between the accident and alcohol in her first application to the Commission. Mr Peters had said in his statement for a life assurance policy that he had never suffered mental or nervous complaints and that he drank 5-6 middies per day. The increase in the alcohol consumption observed by Mrs Peters after her husband's return from Korea had only a purely temporal connection with his service.
The coroner had found that Mr Peters was in good health at the time of the accident. There was mud about the steps of the water tower and Mr Peters and Mr Nasir had to walk through mud to get to the ladder. There was no evidence that Mr Peters was suffering from delirium tremens or a hangover on the morning of the accident. Mr Doube questioned also Mrs Peters' evidence regarding the amount of alcohol that her husband drank on the night before his fall. He pointed to her evidence to the VRB that he drank cans of beer between 4.30pm and 8.00pm and to her evidence at the hearing that he consumed at least 12 bottles of beer and finished at 10.30pm. Mr Doube submitted that Mrs Peters did not know what her husband had consumed. She had crafted her evidence at the later hearing to suit her case as she had realised that the amount she had earlier specified was insufficient to affect her husband's judgement. In addition, Mrs Peters had changed cans to bottles.
Mrs Peters was merely speculating as to the cause of her husband's fall and that was all that anyone could do. The evidence supporting her claim was subjective and there was no direct evidence supporting her statements.
CONSIDERATION
At the heart of Mr Piper's submissions was that there is a causal connection between Mr Peters' death and his operational service. It is apparent from the principles in the judgement of Lee J in Ferriday v Repatriation Commission (1996) 42 ALD 526 that his death and his operational service have to be established on the balance of probabilities. I am satisfied that they have been established and that was not queried by either party. It is also apparent that the matters raised as part of the causal connection between Mr Peter's death and the operational service are subject to the less stringent test specified in ss. 120(1) and (3) of the VE Act. For the reasons given in Cowie and Repatriation Commission [1999] AATA 334, 19 May (unreported, S A Forgie (Deputy President), Brigadier IRW Brumfield and Dr JB Morley (Members), 19 May, 1999), it does not matter that the hypothesis by which it is sought to establish the connection between Mr Peter's death and his operational service relies upon his having suffered psychoactive substance abuse or dependence as a result of his operational service and that the condition is the subject of a Statement of Principle. This is consistent with the judgement of the Full Court of the Federal Court in Repatriation Commissionv Cooke (1998) 160 ALR 17.
Having regard to all of the evidence, I am satisfied that there is material pointing to Mr Peter's having suffered from psychoactive substance abuse or dependence. There is material pointing to the psychoactive substance which he abused or upon which he depended as being alcohol and to his use of alcohol as causing him a persistent or recurrent social problem. That material is found in the evidence of Mrs Peters who related a lengthy history of her husband's abuse of alcohol. She did that not always by reference to the amount of alcohol that he drank but by reference to the effects that the alcohol he drank had upon his behaviour generally and to his family in particular. She referred to violent episodes in her marriage affecting both her and her children and she referred to mood swings and personality changes effected by alcohol. There is the material in the statement of Mr Jones who knew Mr Peters from their time together in Korea. Finally, there is the material in the evidence both of Mrs Peters and Alcoholics Anonymous pointing to his being a member of that organisation from 1967. That material points also to Mr Peters' having knowledge that his continued use of alcohol caused him a persistent or recurrent social problem. There is material pointing to Mr Peters' continuing to suffer from alcohol dependence up until the time of his death. That is found in the evidence of Mrs Peters at the hearing and also in the statement supporting her first application for a widows pension in 1977 in which she said that her husband had an alcohol problem.
Is there material pointing to Mr Peters' alcohol dependence having arisen out of, or in the course of, his operational service? That brings me to SoP 5 and, in particular, to clause 1(a). When was the onset of Mr Peters' alcohol abuse? The material points to its not having been present before he enlisted in the Army in 1951. His wife said that he had been a social drinker when they met in August, 1950 and that he continued to be a social drinker, and nothing more, right up until she last saw him in April, 1952. During that time, she had not seen him from approximately November, 1951 until some time early in 1952 but had not noticed a change in his habits even though she saw him each weekend until April, 1952.
The material points to the onset of alcohol abuse having happened while he was on operational service. There is the evidence of Mrs Peters that he was a changed person after his return. He came back as a morose person, who was highly strung and who avoided crowds, whereas he had previously been a gentle and caring person. That material is indicative of a temporal connection between Mr Peters' alcohol abuse and his service. Her evidence as to his one conversation with her regarding his service in Korea and that of Mr Jones, however, provides more than a temporal connection and point to a causative connection. She said that her husband told her that he collected bodies during cease-fires. This was supported by the photograph of the body. That points to a stressful event in which there was an external stimulus that would result in psychological stress. The material also points to Mr Peters' suffering subjective symptoms of increased stress in that he needed half a bottle of whisky to help him carry out his task.
The material of Mr Jones points to a second stressful event in Mr Peters' service. That was the occasion on which Mr Peters was assisting another soldier to safety but that other soldier's owen gun discharged and drew the fire of the enemy. The other soldier died as a result. It is to this stressful event that the evidence points to Mr Peters' dreams returning. He returned to it in his conversations with Mr Jones. It was a matter that only Mr Jones and another soldier, who had died earlier, knew about. Such an incident was as a result of a series of events culminating in an external stimulus that would result in psychological stress. The material points to Mr Peters' suffering subjective symptoms of stress as a result.
It follows that the material points to Mr Peters' alcohol abuse arising out of, or being attributable to, his operational service and to the hypothesis being consistent with SoP 5. Does the material also point to Mr Peters' suffering from the effects of alcohol abuse on the night before his fall and into the morning? Mrs Peters' evidence pointed to his drinking with friends on the night before the fall and to his second friend leaving at approximately 10.30pm. The VRB recorded her as having said that Mr Peters had "… been drinking with two of his mates at home between 4.30pm and 8pm. After his mates left he continued to have a few more cans of beer." (T documents, page 8). At the hearing, Mrs Peters estimated that he drank approximately 12 bottles, or stubbies, of beer. "Proof of facts is not in issue at this point", as the High Court said in the Byrnes case (page 215). Even if it were, both pieces of evidence point to Mr Peters' having continued to drink past 8.00pm whether on his own or in company. Mrs Peters did not estimate to the VRB an amount of beer that her husband consumed. Her evidence at the later hearing points to its being approximately 12 bottles of stubbies with the last drink at 10.30pm on the night before the fall.
The evidence of Mr Richardson points to the effect of a person of average weight having consumed 12 stubbies of beer. There is no material pointing to Mr Peters' weight at the time of his fall although Mr Jones' statement points to his looking thin and sick in August, 1976. Much earlier, in 1965, he had told the National Mutual Life Association of Australasia Limited that he weighed 9 stone 7 pounds. That equates with a little over 60 kilogrammes. Mr Richardson assumed an average male person to weigh approximately 70 kilogrammes. The Healthy Devil On-Line contains tables setting out the blood alcohol level reached by males and females based on body weight, number of standard drinks and time since first drink. Although I have not reproduced those tables, they point to a decrease in blood alcohol level with an increase in body weight where two people have consumed the same number of standard drinks in the same time. That is so regardless of whether the person is male or female. (Exhibit D, pages 1-2)
Returning to Mr Richardson's report, it points to Mr Peters' having a blood alcohol level of between 0.120% and 0.045% depending on his rate of metabolism. It also points to his judgement, concentration and motor-sensory co-ordination being significantly impaired. So too does the material in the table that I have set out from the Healthy Devil On-Line although that table suggests that the effects are less at the lower blood alcohol levels than does Mr Richardson.
It follows that there is material pointing to Mr Peters' judgement being impaired on the morning of the fall and to its being impaired because of his abuse of alcohol. The material, therefore, points to his falling because of that impaired judgement. Having fallen, he became unconscious, inhaled blood and died as a consequence of that inhalation. Therefore, the material points to a hypothesis that Mr Peters' death arose out of, or was attributable to, his war service.
That brings me to the question of whether or not the hypothesis is reasonable. As Heerey J said in Deledio, there are three matters relevant in considering whether or not it is reasonable. One is that it is not upheld by a SoP. For the reasons I have given, it is consistent with SoP 5 relating to psychoactive substance abuse and dependence. There is no need to consider SoP 15 in the circumstances of this case.
Another relevant matter to consider in considering the reasonableness of the hypothesis is that it is contrary to known or scientific facts. That is not to say that there is no other hypothesis that could be put forward that might explain how Mr Peters came to fall and so to die for there are. There is, for example, the hypothesis that his boots were muddy and slippery because the water that had overflowed from the water tank during the night had made the ground around the ladder very muddy. There is also a hypothesis that he lost his footing at the top of the water tower where there was a missing guard rail. There is a further hypothesis that his fall was a deliberate act on his part. The fact that there are other hypotheses does not in itself render any one, and particularly the proposed hypothesis, unreasonable. The hypothesis under consideration is not only not contrary to known or scientific facts but supported by it. The evidence is that the risk of an accident occurring increases as the blood alcohol level increases. That is both in the ABC of Alcohol and in Mr Richardson's report. A vertical ladder, albeit in four parts, of some 98 feet in length presents a more hazardous situation than remaining on the ground even when the ladder is enclosed in a safety cage. On the evidence, Mr Peters' risk of accident had approximately doubled and was somewhere between that level if his blood alcohol level measured 0.045% and 25 times the normal risk if his blood alcohol level measured 0.120%.
The third matter referred to by Heerey J in Deledio is whether the proposed hypothesis is obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous. Having regard to the material that supports it, I do not consider that it can be said to be any of these things. Mr Doube said that the cause of the accident is a matter of speculation. I agree with him, and the Board of Inquiry could only speculate on what had happened. There were no witnesses to the fall. A hypothesis is, however, a proposition put forward as an explanation of the events that were an integral part of the fall's occurring. It is necessarily a matter of speculation but that is different from saying that the proposition is obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous. Having regard to all of the material, I consider that it is none of those things and that it is reasonable.
As the hypothesis is reasonable, I am required to decide that Mr Peters' death was war-caused unless I am satisfied, beyond reasonable doubt, that there is no sufficient ground for reaching that decision. In considering that, I have looked to Mrs Peters' credibility. I find her to be a credible witness. She has consistently maintained since 1977 that alcohol was a contributing cause to her husband's accident. The fact that she described him drinking cans at one hearing and bottles or stubbies at another does not detract from my conclusion. She was a non-drinker who did not profess to count precisely what he drank. More importantly, however, she knew in general terms what he drank and could confirm that by reference to his mood, for his mood determined her own pattern of behaviour.
Mrs Peters' evidence as to her husband's drinking is not inconsistent with the statement he made on 12 December, 1976 that he drank 52 to 65 ounces of beer a day. His acknowledged consumption was in the order of between 2 and 2 1/3 large bottles (not stubbies) of beer. That acknowledgment was made in connection with his life assurance policy. Given that connection and, in the absence of the rest of that document and any evidence as to why Mr Peters completed it, I find that his estimate would have been conservative. Mr Jones said that Mr Peters had stopped drinking but he had not seen him since August, 1976. Mrs Peters' evidence is more reliable. She had said in support of her first application that he had tried very hard to control his intake of alcohol and had almost succeeded. That is not inconsistent with her evidence that he had been drinking alcohol on the night before his fall and drinking quite heavily.
Certainly, Mr Peters had not stated on his discharge that he was suffering from any mental or nervous complaint as a result of his service. That is very often the case when service personnel were discharged in earlier times. In the circumstances of a case such as this where only two other people knew of the incident involving the death of the soldier, it is not surprising that he did not reveal that he had any difficulties. To reveal them would have been to reveal their cause.
Taking these matters and the whole of the evidence into account, I am not satisfied, beyond reasonable doubt, that Mr Peters' death did not arise out of, or was attributable to, his operational service. Therefore, I am satisfied that it was war-caused within the meaning of the VE Act. For the reasons I have given, I:
1.set aside the decision of the respondent dated 11 August, 1998 and affirmed by a decision of the Veterans' Review Board on 12 April, 1999; and
2.substitute a decision that:
(1)the death of the applicant's husband, Terence James Peters, was war-caused within the meaning the Veterans' Entitlements Act 1986; and
(2)the respondent is liable to pay a pension to the applicant in accordance with s. 13(1) of the Veterans' Entitlements Act 1986 with effect from 3 May, 1998.
I certify that the ninety five preceding paragraphs are a true copy of the reasons for the decision herein of Miss S A Forgie (Deputy President)
Signed: ...........................................……
S Thomson Personal AssistantDates of Hearing 24 May and 15 November, 2000
Date of Decision 6 February, 2001
Solicitor for the Applicant Mr B Piper
Solicitor for the Respondent Mr G Doube
2
6
0