POTTER and REPATRIATION COMMISSION
[2010] AATA 607
•17 August 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 607
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/1910
VETERANS' APPEALS DIVISION ) Re KEITH JOSEPH POTTER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr Egon Fice, Senior Member, Dr Roderick McRae, Member Date17 August 2010
PlaceMelbourne
Decision The decision of the Veterans’ Review Board made on 31 March 2008 is affirmed.
...........(sgd) Egon Fice.............
Senior Member
VETERANS’ AFFAIRS – Royal Australian Air Force – eligible war service - disability pension – hypertension - hearing loss/tinnitus - pulmonary fibrosis – ischaemic heart disease - Veterans’ Review Board – standard of proof – alcohol consumption - clinical onset – war caused hypertension – alcohol consumption
Veterans’ Entitlements Act 1986(Cth) ss 7(1)(c), 9, 120, 120B,120(1), 120(2), 120(4), 196B(3), 196B(12), 180A(3)
Repatriation Act 1920
Government Insurance Office (NSW) v R J Green and Lloyd Pty Ltd (1966) 114 CLR 437
Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281
Law v Repatriation Commission (1980) 29 ALR 64
Repatriation Commission v Cornelius [2002] 69 ALD 250
Repatriation Commission v Smith (1997) 15 FCR 327
Repatriation Commission v Tuite (1993) 39 FCR 540
Re Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Roncevich v Repatriation Commission (2005) 222 CLR 115
Walsh v Rother District Council [1978] 1 ALL ER 510
Statements of Principles Instrument No 36 of 2003
Statements of Principles Instrument No 4 of 2004
Statements of Principles Instrument No 12 of 2008
REASONS FOR DECISION
17 August 2010 Mr Egon Fice, Senior Member 1. Mr Keith Potter was born on 24 January 1926. He enlisted in the Royal Australian Air Force (RAAF) on 9 February 1944 for duration of the war and for a period of 12 months thereafter. He was discharged on 30 May 1946 without having had operational service as that expression is defined in the Veterans’ Entitlements Act 1986 (VE Act). His mustering was as an electrician. The Repatriation Commission (the Commission) accepts that Mr Potter had eligible war service as that expression is defined in s 7(1)(c) of the VE Act.
2. On 27 February 2007 Mr Potter lodged a claim with the Department of Veterans’ Affairs for a disability pension. His claimed disabilities included hypertension, heart problems, hearing loss/tinnitus and pulmonary fibrosis. On 3 May 2007 a delegate of the Commission accepted Mr Potter’s claim for bilateral sensorineural hearing loss and bilateral tinnitus. The delegate determined that Mr Potter’s hypertension, ischaemic heart disease and pulmonary fibrosis were not causally related to his military service.
3. Mr Potter sought review of the delegate’s decision by the Veterans’ Review Board (VRB). On 31 March 2008 the VRB affirmed the Commission’s decision. Although Mr Potter’s application to the Tribunal included a review of all three conditions rejected by the VRB, he subsequently advised the Tribunal that he no longer sought review of the VRB decision which refused to grant him a pension for his respiratory complaints.
4. Therefore, the only issues which we are required to address are:
(a) whether Mr Potter suffers from hypertension and ischaemic heart disease; and
(b) if the answer to (a) is in the affirmative, whether those conditions are causally related to his service with the RAAF between February 1944 and May 1946.
DIAGNOSIS AND CLINICAL ONSET
5. The Commission accepts that Mr Potter suffers from hypertension and ischaemic heart disease. It also concedes that Mr Potter’s hypertension preceded the clinical onset of ischaemic heart disease.
6. In making a determination about the clinical onset of Mr Potter’s hypertension and ischaemic heart disease, the standard of proof is that set out in s 120(4) of the VE Act. We must decide this issue to our reasonable satisfaction because it is not a determination to which s 120(1) or (2) applies. This was dealt with by the Full Court of the Federal Court in Repatriation Commission v Smith (1997) 15 FCR 327 at 334-335. Beaumont J, with whom Northrop and Spender JJ agreed, said at 355:
Even if the Tribunal is not bound by the traditional evidentiary principles, s 120(4) constitutes a clear direction to the Tribunal that it must be reasonably satisfied before it makes any decision. In my opinion, this could only have been intended to introduce the standard of proof required in civil litigation. …
This means we are required to decide the question of the clinical onset of Mr Potter’s hypertension and ischaemic heart disease on the balance of probabilities.
7. The meaning of the expression clinical onset is not defined in the VE Act. The Tribunal in Re Robertson and Repatriation Commission (1998) 50 ALD 668, referred to the evidence of two medical professionals, Professor Pitt and Dr King, regarding the meaning of the expression clinical onset. Professor Pitt said, at [20]:
Its general use in medicine is to indicate the ability to diagnose an abnormality using basic clinical tools which mean tools that are readily available to the medical practitioner. This would for instance include a history and examination, an electrocardiogram and also straight forward investigations such as a chest x-ray and even including more high technological procedures such as coronary angiography, ct scanning or magnetic resonance imaging.
8. Dr King said that the use of clinical together with onset implies something that a Doctor can identify as a start of signs or symptoms of the disease process. He explained, at [22]:
Clinical onset I think is a medical concept of when a doctor or a patient becomes aware that they have a problem so the clinical onset, as I have said here, may be the symptoms or it may be that we have found that the patient has an abnormality on a cardiograph. I think perhaps a good example is the patient who is perfectly well and comes in and you find that they have high blood pressure, even though they have got no symptoms of it, the clinical onset of their high blood pressure is when the doctor discovers it, although they may have had it for years and years before.
9. The Tribunal summed up the evidence and said, at [23]:
On that evidence we consider that there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.
10. The meaning of the expression clinical onset as stated by the Tribunal in Robertson’s case appears to have been accepted by Branson J in Repatriation Commission v Cornelius [2002] 69 ALD 250. Weinberg J also referred to it in Re Repatriation Commission v Gosewinckel (1999) 59 ALD 690.
11. Mr Potter testified that he believed the onset of his hypertension was in about 1979 and he was diagnosed with ischaemic heart disease in about 1987.
12. In the Statement of Principles (SOP) concerning hypertension (No 36 of 2003 as amended by No 4 of 2004 and No 12 of 2008), hypertension is defined as permanently elevated blood pressure, evidenced by a usual blood pressure reading where the systolic reading is greater than or equal to 140mmHg or where the diastolic reading is greater than or equal to 90mmHg. Mr Potter’s medical records obtained from the Oakleigh Medical Centre record systolic pressures of 170mmHg and diastolic pressure readings of 100mmHg in May and June of 1976. Accordingly, we find that the clinical onset of Mr Potter’s hypertension was in 1976.
13. The first mention of ischaemic heart disease in Mr Potter’s medical records occurs in 1987. This appears to have followed him performing an exercise test. The diagnosis was confirmed at cardiac catheterisation in 1988 following which Mr Potter underwent coronary artery bypass surgery. On this evidence, we find that Mr Potter experienced the clinical onset of ischaemic heart disease in March 1988.
WAS MR POTTER’S HYPERTENSION WAR CAUSED?
14. Section 9 of the VE Act provides:
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)…
(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; …
15. As Toohey J explained in Law v Repatriation Commission (1980) 29 ALR 64, the expression has risen out of or is attributable to requires some causal relationship between the injury and relevant service. The relationship is not as direct as the expression caused by might require. He referred to the decision of the High Court of Australia in Government Insurance Office (NSW) v R J Green and Lloyd Pty Ltd (1966) 114 CLR 437, where Barwick CJ said, at 443:
Bearing in mind the general purpose of the Act I think the expression "arising out of" must be taken to require a less proximate relationship of the injury to the relevant use of the vehicle than is required to satisfy the words "caused by". …
Toohey J also referred to the decision of Donaldson J in Walsh v Rother District Council [1978] 1 ALL ER 510 regarding the expression attributable to, where his Honour said, at 514:
… these are plain English words involving some causal connection between the loss of employment and that to which the loss is said to be attributable. However, this connection need not be that of a sole, dominant, direct or proximate cause and effect. A contributory causal connection is quite sufficient.
16. Toohey J said, in relation to the Repatriation Act 1920, at 72:
In my view, para (b) of s 101(1) requires no more than that the death of a member of the forces have some causal connection with his war service.
17. Section 120 of the VE Act sets out the standard of proof which must be established to enable a determination to be made that a veterans’ injury, disease or death was war caused. However, because Mr Potter’s service was eligible war service and not operational service, s 120(4) applies when making any determination or decision in a matter arising under the VE Act (s 120B).
18. In applying s 120(4) of the VE Act to determine this claim, we must be reasonably satisfied that an injury suffered by a person; a disease contracted by a person; or the death of a person was war caused only if:
(a) the material before us raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force a SOP determined under s 196B(3) or (12); or under s 180A(3) that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
19. Ms Fiona Ryan of counsel, who appeared on behalf of Mr Potter, directed us to what the majority (McHugh, Gummow, Callinan and Heydon JJ) said in the High Court decision in Roncevich v Repatriation Commission (2005) 222 CLR 115 at 126, namely:
A causal link alone or a causal connection is capable of satisfying a test of attributability without any qualifications conveyed by such terms as sole, dominant, direct or proximate.
That statement was made in the context of, what the majority perceived to be, a legislative intention to give the expression defence-caused a broad meaning. The majority said that expression was not to be circumscribed by considerations such as whether the relevant act of the appellant was one that he was obliged to do as a soldier.
20. The majority cited with approval a passage from Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281 which was relied on by Heerey J when the Roncevich case was before the Federal Court. The Court said, at 125:
As Dixon J said in the passage from Henderson cited by Heerey J in the Full Court, whether an event arises in the course of an activity, or as here, out of “an activity”, depends upon such matters as the nature of the person’s employment, the circumstances in which it is undertaken, and what, in consequence, the person is required or expected to do to carry out the actual duties. The connection must however be a causal and not merely a temporal one.
21. Kirby J in Roncevich’s case analysed in some depth the principles of law dealing with causation. He said, at 141-142:
As with all issues of causation in law, it is necessary to identify the limits of the propounded obligations. Such limits are usually drawn in a commonsense way by reference to any considerations of policy reflected in the language and purposes of the governing law. The prior existence of facts and circumstances does not, as such, make those facts and circumstances causally relevant, in a legal sense, for an event that follows in time. In every case, it is necessary to postulate an outer boundary of liability.
22. Ms Ryan also referred us to Repatriation Commission v Tuite (1993) 39 FCR 540. In that case, Mr Tuite had not smoked cigarettes prior to enlisting in the Army at age 24. By the end of his first 14 days in camp, Mr Tuite was smoking about 20 cigarettes a day. He claimed that it was the circumstances in camp which caused him to smoke. The Tribunal in that case accepted Mr Tuite’s evidence that he was influenced to commence smoking by the circumstances of camp life and by other servicemen with whom he was encamped. It also accepted that his smoking while in the Army caused him to become addicted to tobacco and that was a contributory cause of his continuing to smoke following discharge. Mr Tuite went on to develop emphysema and gastric ulcer which he claimed arose out of or was attributable to his eligible war service.
23. Of Mr Tuite’s service, Davies J said, at 541-542:
Eligible war service encompasses not only the act of service but all the incidents of service, such as life in camp. Under s 9(1)(b), but not under s 9(1)(d) and 9(2), if an injury or disease is claimed to have arisen out of or to be attributable to a serviceman’s period of camp life, the question will usually be whether life in camp was a contributing cause and not merely the setting in which the event occurred. Denning J has said that the service “must be a cause as distinct from being part of the circumstances in or on which the cause operates.” See Marshall v Minister of Pensions [1948] 1 KB 106 at 110; W v Minister of Pensions [1946] 2 ALL ER 501 at 502; Minister of Pensions v Chennell [1947] 1 KB 250 at 256. …
And, at 542:
If the circumstances of eligible war service provide an operative cause contributing to the serviceman’s injury or disease, it matters not that the relevant circumstances, such as peer pressure to smoke, could be found elsewhere than in camp life. The question in each case, and it is a question of fact for the administrative decision- maker, is whether the eligible war service contributed causally to the injury or disease.
24. Burchett and Einfeld JJ said, at 545:
It is true that not everything which occurs while a man is in camp is attributable to his war service. But here the circumstances and incidents of camp life were plainly capable of having a causal influence upon the respondent’s decision to take up smoking, and upon his continuance in the habit until the inevitable onset of nicotine addiction.
25. Mr Potter testified that prior to enlistment in the RAAF, he had never consumed alcohol. He said that shortly after joining the RAAF, while travelling by train from Melbourne to Sydney, the train stopped at Moss Vale for about one hour. He said that the airmen with him suggested they go to the pub and he went along with them. That was the first time he consumed alcohol. He said that when they got to Sydney, they were accommodated at the Coogee Bay Hotel. In fact, it was accommodation adjoining the Coogee Bay Hotel. He said that they would drink at the Hotel during the week, consuming alcohol on two to three days during the week. Mr Potter also testified that they readily consumed alcohol on the weekends.
26. When asked why he drank alcohol at that time he explained that it was due to comradery and also to relieve stress. He was concerned about exams which he had to sit in the course of his training and he was determined to pass those exams on the first attempt. Mr Potter also said that in his role as an electrician, he was under some stress to ensure that his work was properly conducted because the safety of others depended upon it. At the VRB hearing, he was asked whether he began drinking regularly while in the RAAF. He responded that he was not drinking heavily. When asked to say how much he was drinking at that stage, he said about half a dozen pots a week. He made a point of emphasising that his drinking was not heavy at that stage.
27. Following his giving evidence at the VRB, Mr Potter wrote to the Department of Veterans’ Affairs because he was concerned with what he saw on the transcript that was provided to him following that hearing. When it was put to him in the course of the VRB hearing that his claim was based on alcohol consumption, Mr Potter is recorded as having said well, this is what I’m saying. In his letter, Mr Potter said that what he intended to say was this is NOT what I’m saying. He went on to say that he never considered himself to be a consistently heavy drinker. There were infrequent times when he averaged up to one bottle of beer per day during his RAAF service.
28. Mr Potter said that after he left the RAAF, he went to live with his father’s parents and he began studying in a three month electrical mechanic’s course at the Melbourne Technical College. He said that after he left the RAAF, he didn’t drink very much because his funds were very limited. This is despite the fact that in his written statement, Mr Potter said that by the time he was discharged from the RAAF, his consumption of alcohol was approximately one 26 ounce bottle of beer per day on average.
29. However, as he said in his oral evidence, that did fluctuate over time. In fact, Mr Potter completed another training course at RMIT over an 18 month period and during that time, he said he didn’t have any money to buy alcohol and he did not drink alcohol at all. In fact, in a letter dated 30 April 2008 addressed to the Tribunal, Mr Potter again repeated that he did not claim to be a heavy drinker during service with the RAAF or afterwards. In fact, he said that he drank about 14 to 15 standard drinks per week or up to about one bottle per night. He said that at no stage did he imply any significantly greater or lesser intake of alcohol. He said that at the VRB, he explained that he generally tended to drink lightly to medium through the week, and sometimes binge socially at weekends. In fact, in the course of his oral evidence before the VRB, he said:
Well, only that I started in the service, I can’t otherwise link it to the service, you know, I had the choice of not drinking from day one, you know, I didn’t have to go across to the pub at Moss Vale and have that first one, you know, I wanted to – just like to be friendly with your colleagues and that’s where it started and once I got out of the service – well, there was no obligation on me to drink in the service for that matter. I didn’t feel any great need to. It was just a social thing.
30. Mr Potter testified that his drinking increased considerably in the late 1950’s and 1960’s. This is when he joined the City and Overseas Club of Melbourne where he was able to drink after hours, that is, after 6pm closing. He said that he drank about one bottle of beer per day until the late 1980’s.
31. Mr Potter was appointed Chairman of the Promotions Appeals Committee in the Commonwealth Public Service in late 1969. He said that in the following six years, he regularly held informal meetings with two fellow Chairmen, approximately twice weekly. He said they enjoyed each other’s company and usually consumed at least a full bottle of whiskey between them at their meetings, and sometimes more. He estimated that his consumption increased, on average, to at least 500ml of whiskey per week at meetings as well as an average daily consumption of alcohol at home of one bottle or one half bottle of red wine. He estimated that his average daily intake at weekends would have been the equivalent of two bottles (750ml) of beer or a bottle (750ml) of wine or half a bottle of whiskey each day. In 1979, he resigned from the Commonwealth Public Service on medical grounds. Mr Potter said at that time, his aggregate weekly intake of alcohol was approximately 35 standard drinks.
32. In our opinion, Mr Potter’s case is clearly distinguishable on its facts from Tuite’s case. Mr Potter’s drinking in the RAAF did not, on the evidence before us, lead to Mr Potter being addicted to alcohol. In fact, his consumption of alcohol during the period of his service is probably more accurately described as moderate. As he said in evidence before the VRB, he drank only so that he could socialise with his colleagues. There was no obligation on him to drink in the service and he didn’t feel any great need to drink because of service life. Furthermore, after leaving the service, Mr Potter had an extensive period where he simply could not afford alcohol and therefore did not drink.
33. His relatively heavy drinking occurred in the late 1950’s and 1960’s when he joined the City and Overseas Club of Melbourne. There was no evidence that this drinking occurred for any reason other than the fact he was able to do so, particularly after normal closing time. There is no apparent connection between that drinking and his modest social drinking while in the RAAF. In fact, Mr Potter’s evidence indicates that his alcohol consumption peaked in the period 1969 to about mid 1975 when he was Chairman of the Promotions Appeals Committee. The reason for that heavy period of drinking was the fact that he enjoyed the company of two fellow Chairmen and they often met twice weekly for the purpose of discussing work matters and, while doing so, consumed substantial amounts of whiskey. There is no obvious link or relationship between that drinking and his service drinking.
34. It is also clear to us that Mr Potter’s alcohol consumption while in the service cannot be said to have arisen out of the course of a service activity or circumstances in which any of his service activities were undertaken. His situation is clearly distinguishable from that which the High Court found in Roncevich. While no doubt Mr Potter’s alcohol drinking commenced while on service with the RAAF, we are unable to identify, from the evidence, any causal connection between the circumstances of his service and the commencement of his drinking alcohol. The only connection, in our opinion, was temporal.
35. Even if we are wrong about that, after Mr Potter left the service, he had extensive periods where he did not drink alcohol at all, due to his finances. That indicates to us that Mr Potter did not feel compelled to consume alcohol and could not be said to have developed dependence in the course of his service. When he again commenced drinking, it was for reasons associated with his then current work. In our opinion, there is no connection between that drinking and the fact that he commenced drinking alcohol while on service with the RAAF. Therefore, even if Mr Potter was consuming an average of at least 200gms of alcohol per week at the time of the clinical onset of his hypertension in 1976, we find, on the balance of probabilities, his alcohol consumption at that time was not connected to his service with the RAAF.
36. Mr Potter’s claim for the pension because of his ischaemic heart disease is linked to his claim arising out of hypertension. That is because Mr Potter relied on Factor 5(a) of the SOP concerning ischaemic heart disease which requires the presence of hypertension before the clinical onset of ischaemic heart disease. Because we have found that Mr Potter’s hypertension is not connected with his service in the RAAF, it necessarily follows that his claim based on ischaemic heart disease cannot succeed.
CONCLUSION
37. For the reasons we have articulated above, we found that although Mr Potter began to consume alcohol after he joined the RAAF, his drinking did not arise out of the nature of his employment or the circumstances in which it was undertaken. We are therefore satisfied, on the balance of probabilities, that his hypertension, which developed in 1976, was not connected with his military service.
38. Because Mr Potter’s claim for pension due to ischaemic heart disease rests solely on us finding that his hypertension was related to his military service, his claim based on that disease cannot succeed. Accordingly, we find that the VRB’s decision made on 31 March 2008 refusing Mr Potter’s claims of hypertension and ischaemic heart disease was correct. We affirm that decision.
I certify that the thirty-eight [38] preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr Egon Fice, Senior Member and Dr Roderick McRae, Member
Signed: ....(sgd) Elise Montalto......
Elise Montalto, AssociateDate of Hearing 25 May 2010
Date of Decision 17 August 2010
Counsel for the Applicant Ms F Ryan
Solicitor for the Applicant Williams Winter SolicitorsAdvocate for the Respondent Ms J McCulloch, Department of Veterans’ Affairs
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